Marshall Decision Research Articles

Gaps and Challenges in Harnessing the Benefits and Opportunities of Indigenous Certification for a Sustainable Communal Commercial Lobster Fishery.

The Marshall Decision of Canada's Supreme Court inspired the Mi'kmaq in the 1700s regarding recognizing fishing rights to the Mi'kmaq communities. Despite this recognition, the Mi'kmaq communities did not have access to commercial fisheries due to the denial of absolute recognition of territories and rights and underrepresentation and participation in resource allocation, governance, and decision-making processes. A potential approach to these issues is the development of third-party Indigenous community-based sustainability certification standards for the American lobster (Homarus americanus) commercial fishery of Nova Scotia by Mi'kmaq communities. An Indigenous certification is a market-based tool that focuses on a holistic approach to the sustainability of the resource, followed by independent accreditations and standards. This study identifies the gaps, challenges, and opportunities of Indigenous-based certifications for the American lobster commercial fishery. We adopt a participatory approach to conventional policy analysis and perform a secondary analysis of existing legal and scientific resources to glean valuable information for supporting the establishment of an Indigenous certification for the American lobster. Certification could provide benefits such as increased control over fisheries management, governance, rights, and socioeconomic interest, building capacity for Mi'kmaq communities, and improving stakeholder relationships. However, there are issues with the entry points of certification for Indigenous peoples related primarily to the dominant actors in accreditation. This study will support further research and engagement of the Mi'kmaq people toward developing an Indigenous certification scheme.

Treaty Rights as a Source for First Nation Social and Economic Development: The Marshall Decision in Atlantic Canada

In recent decades, First Nations across Canada have used a variety of instruments to rebuild their economies and societies, not without a struggle but also with measurable success. These instruments include levers like certain provisions of the Indian Act related to taxation on reserve, the pursuit of specific and comprehensive land claims, Treaty Land Entitlement settlements that have provided an avenue for the creation of urban-based reserves and business development, and Aboriginal and treaty rights recognized by the Supreme Court. It is the latter that is the subject of this article, especially the two Marshall decisions issued by the Court in 1999, which recognized the treaty right of First Nations in the Maritime region to fish for a moderate livelihood.2 In this article, we will describe the decision, the reaction to it from various parties, ongoing flashpoints that have the potential to generate tension and conflict, and some possible paths forward.

10. A Discursive Monopoly: The Role of the Canadian Mainstream Media in the Social Dislocation of Aboriginal Peoples

This poster investigates the Canadian mainstream media’s power and participation in discourses of subjugation surrounding contemporary Aboriginal issues in a manner that discriminates against the realities of Aboriginal cultures and peoples and the historical context of the inequitable Aboriginal social location in Canada. I examine the ways in which the Canadian media has engaged in “reality construction” whereby a particular ideological perspective is imposed on the public that constructs Aboriginal peoples through stereotypes, omission of historical fact, and appropriation of identity. This is demonstrated by an analysis of the portrayal of Aboriginal peoples as a monolithic “problem people” for the Canadian nation in four prevalent categories: 1) as a threat to Canada’s national interests; 2) as a risk to Canada’s social order; 3) as an economic liability; and, 4) as a problem for the criminal justice system (Fleras and Elliot 2003:327). This was evident in reporting on the Kaschewan Reserve water contamination in 2000, the Marshall Decision court ruling in 1999, and the Oka Crisis protests in 1990. The discourses analyzed here are derived from particular power relations that produce stereotypical reporting in support of the dominant interests, thus manufacturing public opinion that divides Aboriginal and non-Aboriginal citizens by reducing the complexities of Aboriginal concerns. This reporting serves to justify the biased prescriptions of the Canadian federal government that discriminate against the values and realities of Aboriginal peoples. Finally, I identify the potential for resistance to these discourses through evidence of expanding Aboriginal media control and expression.

The Authority of Investment Treaty Tribunals to Issue Orders Restraining Domestic Court Proceedings

This article considers the authority of investment treaty tribunals to issue provisional measures affecting domestic courts or, as they are more commonly known, ‘anti-suit injunctions’. In particular, the article examines provisional measures of the kind ordered in the Chevron v Ecuador dispute, essentially to prevent the aggravation of an alleged denial of justice. It is contended that there is something distinctive about injunctive relief restraining another court or tribunal which is not necessarily captured by applying the standard provisional measures formula. It is further contended that measures restraining the continuation or enforcement of domestic court proceedings on the basis of the non-aggravation principle raise special considerations of comity and a concomitant need for care. The same considerations do not arise, at least not to the same degree, with respect to measures which seek to restrain domestic court proceedings in order to preserve the exclusivity or procedural integrity of investment treaty arbitration proceedings. The article concludes that there is an important difference between jurisdiction and authority. Investment treaty arbitration is one legal system amongst many, and cannot afford to appear insensitive to the concerns of domestic legal orders. That is so even where a serious breach of international law appears to be taking place. Investment treaty arbitration tribunals should be wary of applying a generic provisional measures test without first explaining and justifying a tailored anti-suit injunction analysis, which sets a principled and appropriately high bar for intervention. ‘John Marshall has made his decision; now let him enforce it!’ E Miles ‘After John Marshall's Decision: Worcester v Georgia and the Nullification Crisis’ (1973) 39 J South Hist 519, 519.

Sharing the same waters

Fifteen years have passed since the ground-breaking 1999 Marshall decision and the Mi'kmaq Lobster Crisis that followed which saw two months of tit-for-tat violence. In this article, we examine how relations among Mi'kmaq and Settler fishers have changed since the decision and its aftermath, and interpret intergroup relations by using Herbert Blumer's group-position theory. The article presents data collected from ethnographic observation and interviews with Mi'kmaq and Settler fishers in a Maritime community. We find that although fishers share the same waters, and have a generally amicable public relationship, many miscon- ceptions and resentments persist.

Emancipation as Oppression: The Marshall Decision and Self-Government

The Decision It was August 1993, and for a second time the name Donald Marshall Jr. would be associated with a court decision in Canada. History was set to repeat itself. Once a symbol of justice miscarried, Donald Marshall Jr. was setting in motion the most important Aboriginal treaty rights case in Eastern Canada, for on that day in August he was arrested for catching 210 kilograms of eels in Pomquet Harbour and selling them for $787.10. Charged with fishing without a license during a closed season, he argued that as a Mi'kmaq he was exercising his treaty rights under the eighteenth-century Peace and Friendship treaties. The case was finally heard by the Supreme Court of Canada, and the decision of that court was released on 17 September 1999, with a further clarification on 17 November of that year. Citing primarily the treaties of 1760-61, the court ruled that Mi'kmaq and Maliseet peoples had the right to hunt, fish, and gather, and to sell their products to make a moderate livelihood. Although the Mi'kmaq and Maliseet people would not now own all the resources, they could access them subject only to limitations justified by conservation needs or other pressing public objectives (Coates 2000, 3-7; INAC 2001; R. v. Marshall #1 1999, § 7) The Supreme Court decision was hailed as a historic breakthrough by Aboriginal peoples. The right to provide a reasonable living for oneself and one's family by directly accessing resources seemed to many to be a significant step in reversing centuries of dispossession and impoverishment. The decision had come shortly after the New Brunswick case of Thomas Peter Paul, who was tried in 1997 for harvesting wood for commercial purposes. The first decision in favour of Thomas Peter Paul was upheld a year later at the Court of Queen's Bench, only in the end to be overturned in 1999 by the New Brunswick Court of Appeal (R. v. Thomas Peter Paul 1996, 1997, 1998). The result, though, despite the eventual defeat, was the expectation that a treaty right to commercial resource gathering existed and would soon be a reality. Both cases prompted Mi'kmaq and Maliseet fishers to purchase the necessary gear and begin to make a living for themselves. Ken Coates wrote in The Marshall Decision and Native Rights of the new optimism that provincial governments appear to be genuinely committed to new resourcesharing arrangements that have real potential to add to the economic sustainability of First Nations (2000, 164). Although he tempered this judgment in his conclusion by drawing attention to the legacy of bitter words and nasty actions, especially around Burnt Church, where the worst violence against Aboriginal fishers occurred, Coates nonetheless saw evidence in the bureaucratization of the process of negotiating agreements with reserves that progress was being made (205-206). Now that ten years have passed, the effects of the Marshall decision can be seen. By exploring the aftermath of the Marshall decision, this essay inquires into the effects that the subsequent agreements between Fisheries and Oceans Canada and the various reserve communities have had both on the attempts to preserve traditional forms of life and on the ongoing governance of reserves. Specifically, I will argue that the fishing agreements have created economic opportunities and jobs at the cost of further eroding traditional political and economic practices, by replacing the direct access to resources provided for by Marshall (and consistent with traditional economic practices) with a system of limited and regulated access. Under these agreements, the management of access will rest with the chief and council. The federal policy of self-government over the past three decades has been to increase the power of the chief and council by devolving areas of authority. The Marshall agreements are structured in terms consistent with this nowestablished policy of self-government. A number of critics have expressed concern that the political structure of chief and council, which exist under the Indian Act, are incommensurate with tradition. …

After Marshall: Implementation of Aboriginal Fishing Rights in Atlantic Canada

Both the Canadian Constitution and several Supreme Court decisions have guaranteed Canada’s First Nations special rights to natural resources including lands, waters, and fisheries. In acting on these rights, however, aboriginal peoples of Canada not been successful in arguing that their activities should be guided by the objectives, rules and protocols established by their First Nation, and not by those of the post-colonial Government of Canada. More recently, the 1999 Marshall decision of the Supreme Court of Canada recognized the Treaty Right of the Mi’kmaq, Maliseet and Passamaquoddy peoples to rely on natural resources for a ‘moderate livelihood’ and a ‘communal level of benefit’. While this decision was met with uncertainly and some hostility by the non-native population, it did result in the government offering new program support to First Nations communities engaged in the commercial fishery in the Canadian Maritimes. This paper assesses those programs and provides an analysis of what First Nation communities have lost and gained in the process

Rights in the Courts, on the Water, and in the Woods: The Aftermath of R. v. Marshall in New Brunswick

In September 1999, the Supreme Court of Canada released its decision in R. v. Marshall, allowing Donald Marshall's appeal against his conviction on charges of catching and selling eels in violation of federal fisheries regulations. Marshall, a Mi'kmaq from Nova Scotia, admitted that he and two companions had caught 463 pounds of eels in Pomquet Harbour, Antigonish, Nova Scotia, and sold them for $787, without having a licence to do so as required under federal regulations. In his defence, Marshall asserted that, under treaties signed by British and Mi'kmaw leaders in 1760-61, Mi'kmaw people had the right to fish and to sell fish without having to comply with the federal regulatory scheme. The Supreme Court, in a five-to-two decision, accepted Marshall's basic argument. The majority noted that Marshall did not have an absolute right to harvest eels; the federal Department of Fisheries and Oceans could limit his treaty right, if the limits were necessary for conservation, public safety, or some other compelling public purpose. The Crown, however, had not introduced any evidence on the purpose or the necessity of the regulations, choosing instead to dispute the claim to a treaty right. Without that evidence, once the Supreme Court confirmed the treaty right, Marshall's acquittal followed (R. v. Marshall #1 1999). The facts of the Marshall case required the Supreme Court judges to decide only whether Donald Marshall had a treaty right to catch and sell eels, but in explaining the treaty right, the court spoke in general terms of a right to sell the products of fishing, hunting, and gathering. In consequence, First Nations peoples viewed the decision as a recognition of their existing rights over natural resources. In a world of disappearing fish stocks and degraded forests, those who derive their livelihood from natural resources sometimes react with fear and anger to the prospect of others seeking their livelihood from the same source. Mike Belliveau, executive director of the Maritime Fishermen's Union, responded to the prospect of increased Aboriginal participation in the east-coast fishery by describing the resource as maxed-out ... so if you're bringing in a whole bunch of new entrants... you're going to have to have compensation for those leaving (Daily Gleaner 1999c). Ken Coates, an academic who has written about Aboriginal and treaty rights in the Maritimes, observed that it is sad and unfortunate that the courts only affirmed First Nations rights to harvest natural resources at a time the resource sectors are not booming (qtd. in Davies 2003). This essay explores some of the public reaction to the R. v. Marshall decision in New Brunswick,1 and argues that this reaction shaped a subsequent ruling of the New Brunswick Court of Appeal in R. v. Bernard, affirming First Nations rights to cut wood on Crown land (2003). In the last few years, judges in Nova Scotia, New Brunswick, and Newfoundland have issued many decisions dealing with charges laid against First Nations people who assert an Aboriginal or treaty right to hunt, fish, or cut wood. As in R. v. Marshall, in most of these cases, the accused admit that their actions violate relevant government regulations, but they claim that their Aboriginal or treaty rights override the regulations. Aboriginal and treaty rights are creatures of history, but with different sources: treaty rights are contained in solemn agreements negotiated between the Crown and various First Nations communities, while Aboriginal rights derive from Aboriginal peoples' occupation and use of the land when Europeans arrived, or when a European nation acquired sovereignty over an area in accordance with the principles of international law. A defence based on an assertion of Aboriginal or treaty rights must be supported by evidence of the historical basis of the right, provided by experts such as historians, anthropologists, or other specialists (Mainville 2001, 26-36, 52). Thus, judicial proceedings have become the forum for presentation of some of the best new research into First Nations-European relations in the Atlantic region in the eighteenth and nineteenth centuries (Bell 1998, 23; Wicken 2002, 1-13, 19-21). …

Breathing New Life into Treaties: History, Politics, the Law, and Aboriginal Grievances in Canada’s Maritime Provinces

AbstractThe 1999 Supreme Court of Canada decision in the case of R. v. Donald Marshall Jr. brought about a dramatic change in Aboriginal (First Nations) fishing and harvesting rights in Canada’s Maritime Provinces. Marshall argued that a series of eighteenth-century treaties signed between the Mi’kmaq and the British government guaranteed his right to fish for commercial purposes. The British and, later, the Canadian governments accorded little priority to these treaties, despite repeated protests by the Mi’kmaq. The Supreme Court’s decision caught most observers by surprise, particularly because of the sweeping provisions it made for Aboriginal participation in the commercial fishery. Political controversy followed, sparked by the absence of decisive action by the federal government, by the First Nations’ determination to commence commercial fishing, and by growing anger at "judicial activism" by the Supreme Court. The resulting tensions exacerbated long-standing ethnic tensions in the region. The Marshall decision represented a major turning point in Aboriginal harvesting rights in Canada. The Supreme Court’s judgment gave new power to treaties that non-Aboriginal governments had chosen to ignore. At the same time, the decision provided Aboriginal Maritimers with assured access to important fisheries (particularly the lucrative lobster trade) and therefore a key role in the evolving regional economy.

Breathing New Life into Treaties: History, Politics, the Law, and Aboriginal Grievances in Canada's Maritime Provinces

The 1999 Supreme Court of Canada decision in the case of R. v. Donald Marshall Jr. brought about a dramatic change in Aboriginal (First Nations) fishing and harvesting rights in Canada's Maritime Provinces. Marshall argued that a series of eighteenth-century treaties signed between the Mi'kmaq and the British government guaranteed his right to fish for commercial purposes. The British and, later, the Canadian governments accorded little priority to these treaties, despite repeated protests by the Mi'kmaq. The Supreme Court's decision caught most observers by surprise, particularly because of the sweeping provisions it made for Aboriginal participation in the commercial fishery. Political controversy followed, sparked by the absence of decisive action by the federal governement, by the First Nations' determination to commence commercial fishing and by growing anger at judicial activism by the Supreme Court. The resulting tensions exacerbated long-standing ethnic tensions in the region. The Marshall decision represented a major turning point in Aboriginal harvesting rights in Canada. The Supreme Court's judgment gave new power to treaties that non-Aboriginal governments had chosen to ignore. At the same time, the decision provided Aboriginal Maritimers with assured access to important fisheries (particularly the lucrative lobster trade) and therefore a key role envolving regional economy

"Patriarchal Colonialism" and Indigenism: Implications for Native Feminist Spirituality and Native Womanism

This essay begins with a Native American women's perspective on Early Feminism which came about as a result of Euroamerican patriarchy in U. S. society. It is followed by the myth of "tribalism," regarding the language and laws of U. S. colonialism imposed upon Native American peoples and their respective cultures. This colonialism is well documented in Federal Indian law and public policy by the U.S. government, which includes the state as well as federal level. The paper proceeds to compare and contrast these Native American women's experiences with pre-patriarchal and pre-colonialist times, in what can be conceptualized as "indigenous kinship" in traditional communalism; today, these Native American societies are called "tribal nations" in contrast to the Supreme Court Marshall Decision (The Cherokee Cases, 1831-1882) which labeled them "domestic dependent nations." This history up to the present state of affairs as it affects Native American women is contextualized as "patriarchal colonialism"and biocolonialism in genome research of indigenous peoples, since these marginalized women have had to contend with both hegemonies resulting in a sexualized and racialized mindset. The conclusion makes a statement on Native American women and Indigensim, both in theory and practice, which includes a native Feminist Spirituality in a transnational movement in these globalizing times. The term Indigensim is conceptualized in a postcolonialist context, as well as a perspective on Ecofeminism to challenge what can be called a "trickle down patriarchy" that marks male dominance in tribal politics. A final statement calls for "Native Womanism" in the context of sacred kinship traditions that gave women respect and authority in matrilineal descendency and matrifocal decision making for traditional gender egalitarianism.

“Patriarchal Colonialism” and Indigenism: Implications for Native Feminist Spirituality and Native Womanism

This essay begins with a Native American women's perspective on Early Feminism which came about as a result of Euroamerican patriarchy in U. S. society. It is followed by the myth of “tribalism,” regarding the language and laws of V. S. coh’ nialism imposed upon Native American peoples and their respective cultures. This colonialism is well documented in Federal Indian law and public policy by the U. S. government, which includes the state as well as federal level. The paper proceeds to compare and contrast these Native American women's experiences with pre-patriarchal and pre-colonialist times, in what can be conceptualized as “indigenous kinship” in traditional communalism; today, these Native American societies are called “tribal nations” in contrast to the Supreme Court Marshall Decision (The Cherokee Cases, 1831–1882) which labeled them “domestic dependent nations.” This history up to the present state of affairs as it affects Native American women is contextualized as “patriarchal colonialism” and biocolonialism in genome research of indigenous peoples, since these marginalized women have had to contend with both hegemonies resulting in a sexualized and racialized mindset. The conclusion makes a statement on Native American women and Indigensim, both in theory and practice, which includes a native Feminist Spirituality in a transnational movement in these globalizing times. The term Indigensim is conceptualized in a postcolonialist context, as well as a perspective on Ecofeminism to challenge what can be called a “trickle down patriarchy” that marks male dominance in tribal politics. A final statement calls for “Native Womanism” in the context of sacred kinship traditions that gave women respect and authority in matrilineal descendency and matrifocal decision making for traditional gender egalitarianism.

The Marshall Decision and Native Rights

The Marshall Decision and Native Rights

An Annotated Bibliography of Major Writings in Aboriginal History, 1990-99

In the fall of 1999 long simmering tensions between Native and non-Native Maritime fishers reached a breaking point following the Supreme Court’s Marshall decision affirming the region’s Aboriginal fishery. Mi’kmaq leaders insisted that the federal government’s regulatory policies quickly adjust to accommodate the recognition of their treaty fishing and hunting rights, whereas non-Native fishers accused the court and the federal government of betrayal in their apparent unwillingness to look after the public interest. Violence followed, resulting in the destruction of Mi’kmaq lobster traps and the vandalizing of processing plants. These events, derived from conflicting interpretations of historical treaties and their contemporary expression, are but one recent development in the long-standing debate over the role and meaning of Aboriginal history in Canada. As the Marshall decision reveals, many Canadians do not support the idea of Aboriginal rights, while many others do not understand the meaning of the term. Outside the realm of Native rights, courtroom dramas over allegations of residential school abuse make clear to all the financial and moral costs of ignoring past statesanctioned injustices against both Aboriginal groups and individuals. As Native leaders have long argued (and as many historians must be pleased to hear), diffusing the cross-cultural tensions requires dialogue and mediation, built on a solid base of carefully contextualized historical knowledge. Over the past decade, as more and more court decisions have reaffirmed long-denied Aboriginal rights and exposed long-hidden abuses, historians have come to play an increasingly important, if not always appreciated, public role. The responsibility this role places on historians is ominous yet stirring, for what scholars of Native

The Marshall Decision and Native Rights

This book begins in its opening chapter with the individual at the centre of this controversy--Donald Marshall, Jr. He is a figure already well known to Canadians as a result of his wrongful conviction and the subsequent judicial inquiry of the 1980's. Here, Marshall is before the Court system again B this time for fishing without a licence, selling eels without a licence and fishing during a closed season. He admits to having caught and sold 463 pounds of eels without a licence and with a prohibited net within closed times. The only issue at trial, then, is whether he possesses a treaty right to catch and sell fish under the treaties of 1760-61 which exempted him from compliance with the regulations.Joined by Mi'kmaq chiefs, the Union of Nova Scotia Indians and the Confederacy of Mainland Mi'kmaq, a legal battle ensues which works its way through the court system ending up finally before the Supreme Court of Canada. In its ruling of September, 1999, the Supreme Court not only finds for Marshall but holds that he has established the existence and infringement of a local Mi'kmaq treaty right to carry on a small scale commercial eel fishery. Amidst the controversy which follows, the Court takes the rather unprecedented step of issuing a statement of clarification [November, 1999]. The statement addresses certain misconceptions about the judgement, principal among these being, that the Marshall decision is specifically about eels and not about other natural resources. Further the treaty right referred to in Marshall is a regulated right. This recognizes the stewardship of the Federal government, the continuing pre-eminence of conservation, and the need to consider the of other users. Finally, the right to a moderate livelihood is interpreted as being limited to securing necessaries--meaning food, clothing and housing, supplemented by a few amenities and not to the open-ended accumulation of wealth.For Coates, making sense of the Marshall decision requires a very broad and comprehensive perspective which must take account of the historical as well as contemporary circumstances of First Nations within the Maritime provinces. Accordingly, there are the historical relations which developed between First Nations and newcomers culminating in the treaties of 1760-61 B the agreements immediately relevant to the case at hand (chapter 2). As well, there are the contemporary social, economic and cultural conditions among these First Nations which finds them largely marginalized from the opportunities enjoyed by most non-Aboriginal Maritimers. Indeed, hardest hit appear to be Aboriginal youth who, even in the face of more vibrant First Nation communities and the reinforcement of language and culture, continue to experience a lack of belonging in a world markedly different from that of their ancestors (chapter 3).The Marshall decision is a legal case in a long line of other such cases, from St. Catherine's Milling and Lumber Company (1888) through Syliboy (1928), White and Bob (1965), Calder (1973), Guerin (1985), Simon (1985), and Sparrow (1990) to Van der Peet, N.T.C. Smokehouse, Gladstone (1996) and Delgamuukw (1997). Together these cases form not only a body of law on issues of resource, treaty and Aboriginal rights but have come to symbolize a hope for greater opportunity (chapter 4). …

The Marshall decision as seen by an “expert witness”

The Marshall decision as seen by an “expert witness”

The importance of the Marshall decision

The importance of the Marshall decision

When the Nazis Came to Skokie: Freedom for Speech We Hate (review)

Book Reviews 105 broad to strict construction. Only Hamilton proposed a consistently expansive reading of the Constitution. Lynch argues that the Constitution was successful in meeting the demands of political life primarily because the nation adopted Hamilton's position. Lynch agrees with Hamilton that the "General Welfare" and "Necessary and Proper" clauses are grants of power entitling the government to enact whatever measures it deems advisable. Lynch's broad construction of the powers of the national government runs counter to common sense, however. If the authority of the government was unlimited , why did the Framers bother to enumerate the powers of the legislature in Article I? Lynch's views also contradict Marshall's decision in McCulloch v. Maryland. Marshall argued that the National Bank was a legitimate means to accomplish the ends enumerated in the Constitution. Marshall implies that some means would be inappropriate to those ends and that new ends could not be added to those enumerated in the document. While it is possible to disagree with Lynch's reading of the Constitution, his fine historical account shows that while discerning the intent of the Framers is often difficult , it is not impossible. Amid all the conflicting opinions judges can still give a "fair" reading of the Constitution. James F. Pontuso Center for the Study of the Constitution When the Nazis Came to Skokie: Freedom for Speech We Hate. By Phillippa Strum. Lawrence: University Press of Kansas, 1999; pp. xii + 172. $25.00 cloth; $12.95 paper. This is a superb case study of the efforts in the 1970s by members of neo-Nazi National Socialist Party of America to demonstrate in Skokie, Illinois, a Chicago suburb of 70,000, with approximately 30,000 Jewish residents, 5,000 to 6,000 of whom are survivors of the Holocaust or family members of survivors. This book is a must for readers of Rhetoric & Public Affairs because it focuses an important attempt by the neo-Nazis to place their symbols of oppression, the storm-trooper uniforms and swastikas, before the residents of Skokie, only to be supported by the American Civil Liberties Union and the federal and higher-level state court system despite the opposition by residents and local political leaders. I learned about certain aspects of the politics of the Skokie case that I had not read in the scholarly literature . At the core of this book is an analysis of the nexus between rhetoric, politics, and public policy. It is about differences between law and politics, courts and elected bodies. It is about how citizens, elected officials, those seeking to demonstrate, and state and federal judges, seek to use their political power and the law to march or to stop a march. It also is the story about the impact of long-standing First Amendment principles which have become quite supportive of the right 106 Rhetoric & Public Affairs to demonstrate on public streets, albeit with minimal time, place, and manner restrictions, a position that is now being questioned by some legal scholars and social scientists with regard to hateful speech as it touches upon race, religion, ethnicity , and sexual orientation. I recommend this book for use in the following classes because it is a great teaching book: introductory courses in American politics, American history, civil liberties, or rhetoric and politics and advanced courses in rhetoric and public policy , American constitutional law, the First Amendment, civil liberties and civil rights, constitutional history, and law and social change, to name but a few. I think the book has wide utility for use in the classroom because it is so well written, informative, and introduces students to analyses found in several disciplines. In this short book, Professor Strum, a noted authority on constitutional law, history, and civil liberties, tells the story of the efforts of the Nazis to march in Skokie and the efforts of townspeople and public officials throughout the Chicago area to stop them, only to be thwarted by the application of First Amendment principles by federal courts and higher-level state courts. Pedagogically, the author brilliantly integrates the history and constitutional law of the right to march and the decline in the legality of the "hecklers' veto" on such...

Empowering the World War II Native American Veteran: Postwar Civil Rights

during and after World War II, the franchise assumed great significance for Native Americans, a significance which stemmed from two historical precedents. First, as sovereign nations, Native Americans possessed a rich democratic heritage. Prior to and during white contact, the majority of tribes conducted operations by consensus rather than coercion, and most Native American groups obtained this consensus through the medium of general councils. Afterwards the group would then initiate appropriate action. The Iroquois furnish a prime example of government by consensus through the formation of the Iroquois Confederacy, also known as the Six Nations, in colonial America. At the height of its power, the Iroquois forced European to deal with their Confederacy on terms which more closely resembled equity than subordination. Both in the period of Dutch rule at New Amsterdam and at Albany following the colony's conquest by the Duke of York in 1664 the Iroquois Confederacy possessed the requisite power and political organization to command respect from all interested European governments, wrote historian Wilcomb Washburn.1 As the military power of Indian tribes waned and their status within the newly-formed United States became more questionable, the Cherokee transformed consensus based on military power into a consensus based on a legal power which their white neighbors had long utilized and respected. On July 26, 1827, the Cherokee adopted a written constitution and declared itself to be a sovereign, independent nation. This constitution marked the first effort by Indians in North America to establish a complete, political structure providing for the self-government of their people under written laws enacted entirely by democratic processes, asserted historian Ronald Satz.2 In the 1830s Chief Justice John Marshall's dual pronouncements in Cherokee Nation v. Georgia and Worcester v. Georgia served to reinforce these tribal conceptions of their independent status although this status had somewhat degenerated. Marshall's decision that tribes were domestic, nations and that only the federal government could make treaties with tribes clearly vindicated their sovereign identity and ensured a continuation of the internal democratic processes. Tribes seized upon the term nation to uphold tribal sovereignty while recognizing that the term dependent implied a loss of power.3 Just how seriously that bargaining power had disintegrated became pivotal when the government abandoned the treaty method in the late nineteenth century for a policy of unilateral decision-making as enunciated in the Executive Order of 1872. The second historical precedent, relating to Native American franchise, stemmed from the aegis of citizenship which operated in this realm of unilateral decision-making. While citizenship was promised in the Dawes Act of 1887, the act postponed the actual bestowing of citizenship for twenty-five years on the assumption that by the next generation most Indians would be assimilated, independent farmers.4 Forty years later, it became clear that the goal of assimilation was far from being achieved, and Congress passed the Snyder Act of 1924 granting citizenship to all Native Americans. In analyzing the passage of the 1924 Snyder Act, historian Gary Stein rejects the argument of Vine Deloria, Jr., argument revived recently by Alison Bernstein, that Congress passed this legislation as a reward for Native American military participation in World War I. Furthermore, he contests the assertion that the act was passed for political reasons, despite the fact that six states possessed a sufficient Indian population to determine the consequences of the election in 1924 once they received the franchise. Pointing to the fact that this legislation was not an act to

Mendelson v. Wright: Understanding the Contract Clause

XW5T ALLACE MENDELSON charges that Benjamin Wright in his The Contract Clause of the Constitution (1938) is guilty of Progressive muckraking, a view holding that the Founding Fathers wrote into the Constitution protections on behalf of the existing economic elite composed of creditors in conflict with a large debtor class (Mendelson 1985: 262). Moreover, Mendelson attacks the conventional wisdom that Chief Justice John Marshall unjustifiably expanded the meaning of the contract clause to protect the monied interests against exercises of state power. Mendelson regards this Populist-Progressive position as historically untenable (1985: 264). Mendelson finds fault with all the major opinions upholding state power over private property. He applauds contract clause decisions with outcomes favorable to private property.1 With pleasure he reports a renaissance of the contract clause in the form of two recent Supreme Court decisions, one in 1977 and the other in 1978. He views these cases as . . a repudiation of the Populist-Progressive, in favor of the Founders' Lockean outlook (1985: 274). Whether Mendelson or Wright is correct, or at least which view represents a closer approximation to the truth, is not a matter of idle intellectual curiosity. It is fundamental to an understanding of the role of the United States Supreme Court in constitutional history. Professor Mendelson has seriously threatened the foundation of what we think we know. His article cannot be ignored, lest his analysis, as mistaken as I believe it to be, become the prevailing interpretation. Wright maintains that the contract clause was intended as a prohibition on state impairment of contracts among private parties, and not relations between a state and private parties. That is, the state was not viewed as having the same status as a private party. Thus, John Marshall's decision in Fletcher v. Peck (6 Cranch 87 [1810]) went beyond what the Framers intended. Wright explains that John Marshall's view stemmed