Vol. 71, No. 7,
July 1998
Book Reviews
This Month's Featured Selections
Wild Justice: The People
of Geronimo vs. The United States
By Michael Lieder and Jake Page (New York, NY: Random House, 1997).
318 pgs. Retail: $25.95. Amazon.
Reviewed by Laura Smythe
The Indian
Claims Commission, established in 1946, was the only judicial body created
to award money to Native Americans to redress some of the wrongs done to
them during European-immigrant expansion in the United States. The Congressional
act that created the commission instructed it to consider not only established
legal principles but also a standard of "fair and honorable dealings."
Wild Justice: The People of Geronimo vs. The United States provides
an excellent analysis of the Indian Claims Commission and its abilities
and failures to address tribal claims. Written by attorney Michael Lieder
and Jake Page, a professional writer, the authors skillfully blend their
viewpoints. I was impressed repeatedly at the ease with which complex legal
theories were explained and applied. The authors intended this book to be
accessible to a wide audience, and it certainly is.
Although the Indian Claims Commission Act was intended to give tribes
an opportunity to air their grievances and to seek compensation for the
injustices they suffered as our nation expanded, Lieder and Page argue that
the Anglo judicial system was ill-equipped to meet the tribes' requests.
The authors begin the book by exploring the travails of one particular tribe,
the Chiricahua Apache, and then weave the Chiricahua story throughout the
book as the tribe is imprisoned, placed on a reservation, and eventually
file varied claims with the commission.
Lieder and Page make three primary arguments. First, they argue that
the judicial system was incapable of handling Indian claims. The judicial
system, which relies on legal precedent, did not allow for novel claims
made under the "fair and honorable dealings" clause of the Indian
Claims Commission Act. Furthermore, the commission (and the Court of Claims
to which appeals were made) was unable to make sense of claims that tribal
groups had suffered the destruction of their identity and culture. There
is no standard definition of culture nor is it clear from established legal
precedent that a tribe has a right to a culture, the destruction of which
should be compensated. The commission was also ill-prepared to address tribal
land claims. The commissioners treated the tribes as individual landowners.
However, the tribes did not view land as property, so monetary compensation
for lost land was rarely viewed as adequate or meaningful.
The second argument is that evidentiary problems proved an insurmountable stumbling
block to meeting the tribes' needs through a judiciary forum. The time lapse
between the alleged wrongs and the trials and the nature of the evidence
were problematic. For example, the land claims required the tribes to prove
the geographical boundaries of the land they lost. There often were no written
records of such boundaries, and oral tradition was considered hearsay. Tribes
who brought accounting and mismanagement claims against the federal government
as trustee had to rely upon government records, which required years of
painstaking tabulations of expenditures made by the government on behalf
of any particular tribe. Given the time lapse between the offense and the
trial, records frequently were spotty or voluminous, or both.
The third issue is the political problem of the federal government's
inherently conflicted role as trustee/defendant and representative of millions
of taxpayers versus the approximately one million Native Americans seeking
redress for damages done to their ancestors. The authors argue that the
governments' lawyers and the legal system found it impossible to ignore
the potential impact of granting large damages. The result, according to
the authors, was inadequate damage awards that amounted to approximately
$1,000 per Native American. Furthermore, because the federal government
is both trustee for the tribes and the defendant in claims made by the tribes,
the granted awards frequently were doled out under parameters set by the
defendant.
The authors acknowledge the marvelous intent behind the Indian Claims
Commission Act and believe that, for a limited number of fairly successful
tribes, it was a useful forum. However, they make a convincing argument
that the Indian Claims Commission was ill-prepared to do justice to the
claims that the majority of tribes sought to have addressed.
Laura Smythe, U.W. 1997, is an attorney in Appleton.
She also holds an M.A. in Latin American studies and in political science.
Representing Children
in Child Protective Proceedings
By Jean Koh Peters (Charlottesville, VA: Michie Publishing, 1997).
917 pgs. Retail: $85. To order, call (800) 446-3410.
Reviewed by Theresa L. Schulz
Jean Koh Peters wrote this book to help lawyers and nonlawyer representatives
of children in child protective proceedings deal with both the practical
and ethical dimensions of their representations. She notes at the outset
a paradox in the attorney-child relationship: that while the attorney's
love of children is likely what drew the attorney to the representation
of children, the attorney also quickly realizes that it is best for the
child to end the case and the attorney-child relationship as promptly as
possible. Making this relationship as short-term as possible can pose difficulties
for a relationship that requires a high degree of communication and trust
between the parties.
The book is divided into two parts: the first defining the child's world,
the lawyer's world, and how they meet; the second providing step-by-step
guidance in working with and representing a child. Peters provides many
practical and useful tips from approaching the child in the initial meeting
to advocating for the child's best interests.
While the book is more than 900 pages, most of it is comprised of many
useful appendices for the practitioner. For example, one appendix provides
an insightful history of family law under the English and American legal
systems. Another appendix contains the primary laws regarding the representation
of children in child protective proceedings in each of the states, territories,
and District of Columbia. The remaining appendices list helpful publications
and resources for those representing children.
Theresa L. Schulz, Minnesota 1993, practices employment
and adoption law in Wisconsin and Minnesota from her office in Lake Elmo,
Minn.
Securities in the Electronic Age:
A Practical Guide to the Law and Regulation
Edited by John F. Olson and Harvey L. Pitt (Little Falls, NJ: Glasser
LegalWorks, 1998). Looseleaf. $129. Amazon.
Reviewed by Douglas O. Smith
According to a recent report, the number of Internet users in the United
States doubled in the last 100 days. Online communication rapidly is becoming
an integral part of how companies transact their business, including the
buying and selling of company stock and the conduct of shareholder meetings.
The lawyers that represent those companies need to understand how to integrate
the Internet into these essential corporate activities without violating
the complex securities laws and regulations that seek to protect the public
interests.
Written by 24 securities practitioners, this handbook, billed as a "comprehensive
reference," is not. Most lawyers will find that it's hardly an essential
tool for helping their corporate clients. A good secondary legal reference
does two things. It provides working lawyers with a basic understanding
of an area of law about which they may have limited knowledge. It then includes
lots of practical tips and insights on how a lawyer can practice in a particular
area without creating more problems than are solved. Unfortunately, this
book accomplishes neither objective.
If you don't already understand the full gamut of securities law issues,
you'll need to start elsewhere than this book to find that understanding.
Chapters 5, 6, and 7, which cover shareholder and investor relations issues,
are an exception; they provide a good background explanation of the law
and identify potential problem areas and how to avoid them. Otherwise, each
chapter appears to begin in the middle of the discussion, when just a few
pages of introduction could have made it easier for everyone to understand
the existing securities regulation background upon which electronic communications
issues are being resolved. More importantly, however, the SEC has published
limited interpretive guidance on the use of electronic communication in
securities sales, and few companies have ventured forth to test the limits
of that guidance. After the exposition in Chapter 1 discussing the SEC releases,
most of the other authors rehash old ground or provide lots of Brave
New World predictions that don't help practitioners much.
If you represent a company that plans to explore the world of cyberproxies
and online shareholder meetings in the very near future, Chapters 5 through
7 provide you with lots of helpful information that you'll probably need
to do it right.
Warning: The choice of an annual looseleaf supplement, rather
than using CD-ROMs issued quarterly or updates available online, will make
the book dated fairly quickly between supplements. Lawyers who practice
extensively in the securities area may appreciate some of the commentary
and the appendix, which includes all of the available SEC and NASD guidance
and a sample online subscription agreement and prospectus. Others should
check out the SEC homepage and other securities law sites on the Internet
instead.
Douglas O. Smith, Marquette 1983, is a principal
and shareholder of General Counsel S.C., Brookfield. The firm serves as
independent general counsel for small businesses and provides contract legal
services to in-house law departments.
The Wisconsin State
Constitution: A Reference Guide
By Jack Stark. Westport, CT: Greenwood Publishing Group, 1997. Hard.
296 pgs. Retail: $79.50. Amazon.
Reviewed by David N. Tulbert
Wisconsin has a rich and distinct society and culture. Jack Stark describes
the interaction between the Wisconsin Constitution and the society and people
to whom it applies. This interaction produced a unique constitution rich
in guarantees that does not merely imitate the federal Bill of Rights but
creates separate unparalleled guarantees not found in the U.S. Constitution.
Stark, assistant chief counsel in the Wisconsin Legislative Reference
Bureau, has performed a great service to the legal community and to those
desiring a better understanding of the Wisconsin Constitution. Stark describes
Wisconsin's reputation for good government and explains that it was earned
as a result of the legislation promulgated by the Wisconsin Legislature
and the leadership shown by the Wisconsin Supreme Court.
Stark describes the influence of the Progressives (a faction within the
Republican Party) and the Wisconsin Idea (the belief that the University
of Wisconsin should serve the state) on Wisconsin's political culture. This
political culture was influential in creating a unique and innovative political
and legal history.
This work provides more than just the history behind the development of the constitution.
It reviews each section of the Wisconsin Constitution and provides helpful
section-by-section commentary that explains courts' methods of interpreting
the constitution. In the guide's "General Topics" section, Stark
explains the various methods used since the constitution's inception and
elaborates on the three primary methods of interpretation used by the courts.
The Wisconsin Constitution - A Reference Guide is an excellent
resource providing constitutional history of Wisconsin, Wisconsin constitutional
commentary, a bibliographical essay, table of cases, and an index. Legal
practitioners and constitutional historians will find this book extremely
valuable.
David N. Tulbert, Washburn 1992, is in-house counsel
for American Medical Security Inc., Green Bay, where he practices in health-care
law and business transactions. He serves on the Managed Care Committee of
the State Bar's Health Law Section.
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