Talk:Joint Tribal Council of the Passamaquoddy Tribe v. Morton

GA Review

This review is transcluded from Talk:Joint Tribal Council of the Passamaquoddy Tribe v. Morton/GA1. The edit link for this section can be used to add comments to the review.

Reviewer: Grandiose (talk · contribs) 09:58, 15 June 2012 (UTC) I'll be taking this review.

Opening comments

• Section "First Circuit opinion" is very primary source based. As a writer of not dissimilar articles I realise this seems inevitable, but it isn't. Locate discussion of the case is journals, textbooks, or even mainstream media and there will be inevitable discussion of what the court ruled.
  • In an article about a judicial case, the section that summarizes what the opinion said, like the "plot" section in the article about a work of fiction, should be cited to the horse's mouth itself. Law reviews and books are useful for analysis and commentary. Even if it were possible to source these sections to such sources (and perhaps it often is) that is a dis-improvement. It attributes to the author as analysis what is little more than a bare bones summary of the opinion itself. The primary source policy is designed to avoid the same evils as the original research policy. It would be a clear violation of the primary source policy to say "Hamlet is Shakespeare's longest play" with a cite to the text of the play itself. But, the text of the play is a fine source for the quote "to be or not to be" and for the fact that Hamlet kills Polonius. It makes little sense to credit some English professor for this quote or this fact. Savidan 20:48, 15 June 2012 (UTC)
    • That's not the same. Judicial opinions, and what the case means, the ratio decidendi, etc, is something that ought to be sourced to secondary sources. Take any of our featured articles on the topics (e.g. Pepper v Hart) and you will get the picture. Most, if not all, both weave secondary sources into the "Judgment" section and have a more developed section(s) about interpretation and opinion on the ruling. Some have very little taken from the judgment at all, but that's going unnecessarily far. The FAs on the topic give a good spread of how to do this.
      • Perhaps "what the case means" starts to pass into what I would call analysis. As for this article, I do not think I have taken any such liberties, although I would be happy to deal with specifics if you think I have cited to the case for anything not obvious from the face of the text. There is a wide array of citation styles used in the FAs about cases (even though that's a very small sample size). None of them totally abstain from case citations (and, in fact, these are common in many articles about cases, at least those that have citations at all), and I do not read any policy to be a per se rule against case citations. Savidan 02:52, 16 June 2012 (UTC)
• As a consequence, both sections "District of Maine decision" and "First Circuit opinion" are in danger of failing "it addresses the main aspects of the topic" since they don't discuss outsiders' opinions. What did people think? Did they make reference to other cases?
  • The article does discuss commentary on the case, such as it exists, but it makes little sense to parcel it out by each stage of the litigation. Savidan 20:48, 15 June 2012 (UTC)
    • I gave sources a quick search and I found plenty of commentary:
      • Reexamination of Passamaquoddy v. Morton, A; Paterson, John M. R.; Roseman, David
      • Federal Acknowledgment of American Indian Tribes: Authority, Judicial Interposition, and 25 C.F.R. 83; Quinn, William W. Jr.
      • Tribal Status Decision Making: A Federal Perspective on Acknowledgment Symposium: The Role of Jurisdiction in the Quest for Sovereignty. Coen, Barbara N.
    • I'm sure there are others that you could build from; I don't have a wide variety available to me here in the UK.
      • I'll take a look at these. Savidan 02:53, 16 June 2012 (UTC)
      • I have added a few things from Paterson & Roseman. Have to take it with a grain of salt b/c it is written by two of the lawyers for the state of Maine during this lawsuit. Savidan 23:42, 16 June 2012 (UTC)
      • In my judgment, the Quinn article has nothing to add. It mentions this case tangentially a few times. But, since federal recognition was not at issue in the case (the tribes were pressing their claims despite their lack of recognition), the meat of the Quinn article is not relevant. Ditto for the Coen article which mentions this case only once. Savidan 02:51, 17 June 2012 (UTC)
• What is the use of small caps?
  • This is dictated by The Bluebook, the citation style used in this article. Savidan 20:48, 15 June 2012 (UTC)
    • It's deprecated under MOS:SMALLCAPS, but that isn't under any of the GA criteria.
      • The general rule, and the one that has actually achieved wide-spread consensus, is citation pluralism. There is no "house citation style" on Wikipedia, and the MOS does not purport to be such. See WP:CITEVAR. Savidan 02:55, 16 June 2012 (UTC)
• Some of the paragraphs in "Settlement negotiations" can be consolidated, I think. If they can't be, that suggests there is material missing that would fill each out to a much fuller paragraph.
  • I don't know that they can't be, but I don't see the point because they each present separate ideas. Savidan 02:54, 17 June 2012 (UTC)

Grandiose (me, talk, contribs) 09:58, 15 June 2012 (UTC)

On hold. Grandiose (me, talk, contribs) 21:34, 15 June 2012 (UTC)

Images

File:1st Circuit seal.png needs a proper copyright tag. PD-USGOV-COURTS may be correct, but it should be put in properly. Images otherwise OK. Grandiose (me, talk, contribs) 09:58, 15 June 2012 (UTC)

Done. Savidan 23:08, 16 June 2012 (UTC)

Comments from another

• mention Maine earlier in lede - not immedicately clear that it's a states rights vs Indian rights issue.
  • It's already mentioned in the second sentence! Savidan 23:08, 16 June 2012 (UTC)

• "aboriginal lands were alienated" - meaning lands were taken away from them? (for those of us not used to legal terms).
  • I've added a wiki-link. I'd like to use precise language here, because the effect of that conveyance was the subject matter in dispute in the lawsuit. Savidan 23:11, 16 June 2012 (UTC)

• "The Passamaquoddy also had grievances" - the first sentence implies, reading retrospectively, but does not say that there was a "grievance" - the "also" assumes there was.
  • I've moved the sentence. Savidan 23:17, 16 June 2012 (UTC)

• "the disenfranchisement of tribal members from 1924 to 1967." disenfranchised from voting? or from something else? Not considered citizens?
  • Voting. I'm aware of no other meaning of this term. (Nor does the link admit an ambiguity in meaning.) Savidan 23:20, 16 June 2012 (UTC)

• "asked for $25,000,000,000 in damages" - was it that much?
  • Yes. I have checked the source again. $25B is right. Savidan 23:24, 16 June 2012 (UTC)

Thanks! MathewTownsend (talk) 15:00, 15 June 2012 (UTC)

Coverage

I believe, having looked at what sources are available, that there is considerably more to say about this case from secondary and academic sources. Would you like me to get a third opinion? Grandiose (me, talk, contribs) 20:40, 17 June 2012 (UTC)

Perhaps, or you could just refer to the sources you think should be cited. Of the three you mentioned above, I added from one and examined the other two but was unable to find anything worth adding. Savidan 03:02, 20 June 2012 (UTC)

If you are indeed taking the position that, in order to achieve good article status, this article must cite every single law review that cites the case, even if only in a single paragraph or footnote, whether student or faculty written, and regardless of whether the article has anything novel to contribute, then your proposal to get a third opinion is beginning to sound like a better idea. Savidan 00:49, 21 June 2012 (UTC)

I have expanded the article with more from Brodeur and Kempers. Savidan 06:04, 26 June 2012 (UTC)

Potential sources

The above list was only supposed to be illustrative that there are two groups of souces currently not used:

• First, those sources which detail the findings of the case as secondary rather than primary sources
• Second, those sources which provide commentary

Some examples:

• In Joint Tribal Council of Passamaquoddy Tribe v. Morton, [FN705] the First Circuit held that the United States continued to enjoy a trust relationship with the Passamaquoddy Tribe, [FN706] even though, for many years, the Tribe had an active relationship with the Massachusetts and Maine state governments, but not the national government. [FN707] The court found that the policy reflected in the Nonintercourse Act was to protect Indian tribes' right of occupancy, even when no treaty recognized that right, and that there is nothing in the Act to indicate that it should “be read to exclude a bona fide tribe not otherwise federally recognized.” [FN708] State assistance, the court explained, is “not necessarily inconsistent with federal protection,” and the state's assumption of obligations toward a tribe does “not cut off whatever federal duties existed.” [FN709] The court found that the federal government's inactivity in relation to the Tribe, as well as its refusal, on several occasions, of tribal requests for assistance, did not sever the trust relationship that existed between the government and the Tribe. [FN710] In short, the United States government cannot be confident that it can ignore with impunity responsibilities toward the Mattaponi Tribe and other pre-constitutional sovereigns. (36 AMINDLR 1)
• Citing the Passamaquoddy Tribe decision, the House report accompanying a bill to approve the settlement noted that the Nonintercourse Act, through which “the United States has exercised its guardianship” over tribes, “has been construed to apply to all Indian tribes in the United States regardless of whether the United States has otherwise recognized the tribe or whether the State has also assumed certain obligations toward the tribe.” (36 AMINDLR 1)
• Similarly, in Joint Tribal Council of the Passamaquoddy Tribe v. Morton, the First Circuit held that the Passamaquoddy tribe could assert rights under the Nonintercourse Act even though it had never signed a treaty or entered into a political relationship with the United States. 528 F.2d 370, 379 (1st Cir. 1975) (“We agree with the district court that the words ‘any tribe of Indians' appearing in the Act include the Passamaquoddy Tribe.”). The court found that there is “nothing in the [Nonintercourse] Act to suggest that ‘tribe’ is to be read to exclude a bona fide tribe not otherwise federally recognized.” Id. at 377.Moreover, “there is no evidence that the absence of federal dealings was or is based on doubts as to the genuineness of the Passamaquoddies' tribal status, apart, that is, from the simple lack of recognition.” Id. at 378. (85 WALR 603)
• Context: One important outgrowth of both the upsurge in Indian political activism and the congressional shift in favor of self-determination was the assertion of land claims by numerous eastern tribes. [FN58] These claims, premised on the Indian right of occupancy identified in Johnson v. M'Intosh, alleged that Indian lands had been improperly alienated to states or individuals in violation of one of the Trade and Intercourse Acts. [FN59] In Oneida Indian Nation v. County *253 of Oneida, the Supreme Court held that tribes who alleged that their land had been alienated in violation of federal law had a valid federal cause of action, specifically alluding to Congress's intent to insulate Indian land claims from state law. [FN60] County of Oneida and its progeny reminded the United States that the trust relationship and plenary power create a federal responsibility to defend tribes against states' thirst for Indian land, even though that responsibility had been long neglected in some quarters. [FN61] (31 WNENGLR 243)
• In 1970s, the Passamaquoddy Tribe brought a landmark case, Joint Tribal Council of the Passamaquoddy Tribe v. Morton, [FN47] that ultimately persuaded the Secretary of the Interior to file a land claim action on behalf of the Passamaquoddy Tribe to recover over 23,000 acres of land unlawfully granted to the Commonwealth of Massachusetts through a treaty of 1974. The lawsuit was filed by the United States against the State of Maine (as successor to the Commonwealth of Massachusetts) seeking to recover lands unlawfully conveyed in violation of the Trade and Nonintercourse Act on behalf of the Passamaquoddy Tribe and the Penobscot Tribe. The lawsuit caused a great deal of concern within the State by its residents whose title was clouded by the federal action. After years of intense negotiations, the Tribes and the State reached a settlement in 1979, which was ratified by the Maine State Legislature. [FN48] In 1980, Congress provided its ratification of the settlement when it enacted the Maine Indian Claims Settlement. [FN49] The Act established a trust fund of $26.8 million, set aside for each of two Tribes (Passamaquoddy and the Penobscot Tribes) and $900,000 for the Houlton Band of Maliseet Indians to use for land acquisition. Under the settlement, each tribe has the right to acquire up to 150,000 acres that can be taken into trust by the Secretary. Any lands acquired beyond that will be held as fee simple lands subject to state and local governmental laws. [FN50] (44 TLSLR 365) (Is that the same figure, only in millions, as the one above in bllions?)
• Although the First Circuit recognized a trust obligation rooted in the Nonintercourse Act that might obligate the United States to sue to prevent the wrongful transfer of tribal land, it acknowledged that the federal government retained prosecutorial discretion in the matter. Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, 380 (1st Cir. 1975). (38 CTLR 605)
• Similarly, the trust relationship can be ended by unilateral act of Congress. See Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370, 380 (1st Cir. 1975). (110 PENNSTLR 283)

I don't have full access to US law journals but I believe this should be sufficient to illustrate the sort of source and coverage issues. I think that the article might be better organised to reflect this, but it's hard to tell until it's been written up a bit. (I hope the referencing system is standard; I can provide details if not.) Grandiose (me, talk, contribs) 19:32, 20 June 2012 (UTC)

There is no need for this article to cite every single secondary source that mentions this case in passing. In fact, most secondary sources which are not entirely devoted to this case, or at least devote a large subheading of the article to the case, have nothing worth adding. For example, the 36AMINDLREV1 source is titled "PROTECTING POCAHONTAS'S WORLD: THE MATTAPONI TRIBE'S STRUGGLE AGAINST VIRGINIA'S KING WILLIAM RESERVOIR PROJECT." The actual topic of the article is a different tribe in a different state. In two paragraphs, it briefly summarizes the Passamaquoddy case. It includes no notable details that are not already in the article. I will look at the others too, but if they are along the same lines, I do not foresee adding anything from them. Savidan 00:36, 21 June 2012 (UTC)

The 85WALR603 source is even less relevant. The title of the article is "DISTINGUISHING CARCIERI v. SALAZAR: WHY THE SUPREME COURT GOT IT WRONG AND HOW CONGRESS AND COURTS SHOULD RESPOND TO PRESERVE TRIBAL AND FEDERAL INTERESTS IN THE IRA’S TRUST-LAND PROVISIONS." It mentions the Passamaquoddy case in a single footnote. Savidan 00:40, 21 June 2012 (UTC)

Updates

Coverage is a lot better. The use of sources is very good for the District of Maine decision; it still relies on the judgment of the court itself for the First circuit opinion, but this is far less of a problem now and brings it inside the GA criteria.

Images: I've removed the only problematic image (fair use with no rationale) because under the non-free content criteria there is no realistic prospect that fair use be allowed here.

Sourcing mostly fine for GA, although ref #80 doesn't make any sense (79 and 82 the same), typo in 36, 93 and 95.

Just these to do (the lead is fine, if now a little short). Grandiose (me, talk, contribs) 09:56, 27 June 2012 (UTC)

The refs have been fixed. Thanks for taking the time to give a thorough review. Savidan 18:26, 27 June 2012 (UTC)

Aftermath

Apologies if this isn't the right place/method of raising an issue. In the Aftermath section, the cited details of land purchases do not add up. It appears to be a date issue, likely a typo.

"As of August 1987, the Passamaquoddy had acquired approximately 40,000 acres (160 km2) and the Penobscots approximately 150,000 acres (610 km2).[101] As of January 1987, the Passamaquoddy had acquired 115,000 acres (470 km2); the Penobscot, 143,685 acres (581.47 km2) (not including the 4,841 acres (19.59 km2) reservation); and the Houlton had not yet acquired any.[102]"

This shows the amount of land purchased declining over time, which seems unlikely to me. January 1987: 115,000 acres declines to August 1987: 40,000 acres. Is this supposed to be January 1988, or some other year? Rymes60 (talk) 15:44, 12 July 2022 (UTC)

Issues in early history

The expedition that settled St. Croix Island in 1604 was led by Pierre Dugua, Sieur de Mons. A Google Book search of "Acadia 1604" (without the quotes) will turn up a large number of sources confirming this. Please pick one of your choosing to substantiate it. Some of them may also address the second issue, which is perhaps why you (and not I) should choose the source.

As far as my claim that two sentences contradict each other: "English speakers did not arrive for another 15 years" (after the French settlement in 1603-4) and "Private purchases of land were common in the 17th century" begs the question of who those purchasers were. At a minimum this needs to be clarified, since the current phrasing suggests they may have been English. A more explicit statement of when more permanent European settlements took place, and by whom, in the relevant geographic area is called for. Magic♪piano 11:50, 10 September 2012 (UTC)

As for the first issue, the exact wording of the source is: "Their first extended encounter with whites did not take place until the winter of 1604-05, however, when Samuel de Champlain and the Huguenot leader Pierre du Guast, Sieur de Monts, built a fort on Dochet Island, in the St. Croix River." I have amended the text to list both names and use the word "built." I hope you will find this change satisfactory. Otherwise, I am not inclined to omit de Champlain's name merely because some sources list du Guast and not him. At a minimum, I would want to see a source that says de Champlain had no part of it and that accounts like Brodeur's are a misconception. Savidan 12:37, 10 September 2012 (UTC)

As for the second issue, I have reluctantly specified that the purchasers were English. The article is silent on the subject of French purchases and has "Anglo" in the title. The few purchasers that it discusses by name have English names. If there were similar French purchases, I have not read anything that indicates they were of relevance to the legal issues in the case. Savidan 12:39, 10 September 2012 (UTC)

Re the first issue: the common misconception is that Champlain led the expedition, which he did not. There are plentiful sources that get his role in the expedition right. Your current phrasing is acceptable.

Re the second, if your sources are silent on the issue, then they are inadequate, and you should seek additional sources that actually answer the question. In the time between what I wrote above and this writing, I was able to find at least one suitable secondary source that identifies French settlements in the area; no original research was needed. source The current phrasing continues to beg the question: if there are English deeds dating to 1639 why were there no English settlers on the deeded landed until the 1750s, as the other source claims? If you think it is important to date English settlement (i.e. permanent occupation vs. title acquisition) in the area in this article, I'd look for a source containing a more clear and definite statement of somewhat permanent English occupation; otherwise, you might just leave out the statements about English settlers arriving 150 years later. (You might weasel around this by saying something like "English interest in the area was also apparent by the 1630s, evidenced by deeds acquired by English-named individuals.") Magic♪piano 12:56, 10 September 2012 (UTC)

This 1859 history claims an English trading post (deeded) at Machias in 1633, but that it was eventually abandoned, and the English/British did not return for over 120 years. Magic♪piano 13:02, 10 September 2012 (UTC)

Upon re-reading Brodeur, he and Baker are not in conflict. Broduer's claim is only that the Passamaquoddy were generally out of the range of the settlements until mid-18th century. Baker's is just that there was one transaction in 1639. That doesn't mean that all the Passamaquoddy lands were overrun with English in 1639. Thus, no contradiction. For the purposes of this article, two things are relevant: the dating of the first transactions (even though these aren't the transactions at issue in the litigation, they give context) and the dating of how long the Passamaquoddy alone occupied the bulk of the land (just to give a general idea, at the very least, of their de facto land tenure). Trading posts for chattel goods are not generally relevant to land title. Savidan 13:14, 10 September 2012 (UTC)

I understand that both title and extent of occupation are important here. There may be no actual contradiction (given that early deeds appear to have been associated with basically seasonal trading activities), but the article previously read like there was one. I think your recent changes to this are fine. Magic♪piano 13:26, 10 September 2012 (UTC)