Wikipedia:Peer review/Fellows v. Blacksmith/archive1

Fellows v. Blacksmith

This peer review discussion has been closed.
This is an article about an 1857 U.S. Supreme Court case concerning Native American land rights in upstate New York. It was decided the day before the more famous Dred Scott case. What makes it so remarkable is that an indigenous party actually prevailed in the Supreme Court for the first time. The article is based on a comprehensive review of (1) the reported decisions in this case and its sister cases, both in the various New York courts and the Supreme Court; (2) contemporary newspaper coverage; and (3) legal and academic commentary from books and law reviews. It has formerly been on DYK and has been a GA for quite some time. This article has had two disappointing FACs. (FAC 1; FAC 2) Neither generated any supporrts or opposes, or any substantial substantive comments. I would be extremely grateful if one or more reviewers could read the article and give feedback.

Thanks, Savidan 03:15, 27 June 2012 (UTC)

Comments:

• I can't promise a full review, as I'm not very familiar with the Supreme Court or law in general. Nevertheless, I'll make some suggestions in case they're helpful.

• I would suggest using the FA United States v. Wong Kim Ark as a model. That article may not be perfect, but it's the only FA Supreme Court case.
  • Thanks. I am familiar with that article, having participated in the FAC. These two cases are rather different in many ways, but I think the overall structure of both is consistent with that advocated by WP:SCOTUS. Savidan 16:04, 26 July 2012 (UTC)

• The first sentence strikes me as somewhat vague. All we learn is that it was a case involving Native American law; I think the most important thing to get across is what the decision meant instead of who it involved or how the case evolved. You might try a slight rephrasing, like "is a United States Supreme Court decision in which the court held a company could not evict a Native American from his land despite that his tribe had signed a removal treaty and the Congress had granted the company rights to the property." Or I think you could use something from the second para, something like, "is a United States Supreme Court decision in which the court held that Native American removal treaties could only be enforced against the tribes by the federal government, not private parties (whether on their own or through the courts)."
  • I have mixed views about this suggestion. On one hand, I think the intro currently includes all the things you have mentioned. On the other hand, I don't think either aspect—whether (1) the hyper-specific holding in terms of the parties, or (2) the precedential effect of the case for Indian treaties—has a indisputable claim to be "the most important thing to get across." I am open to more suggestions about the first sentence, but I think both of these suggestions go too far in the other direction. Savidan 16:04, 26 July 2012 (UTC)
    • The problem I have with the first sentence is that it's inspecific. That the case "is a decision involving Native American law" does not really define the case, I would argue, per WP:Lead#First sentence. It would be nice if we had some sort of more detailed definition. I'm not saying you should use the suggestions above, however.

• Following the United States v. Wong Kim Ark model, I'd then consider using the second sentence to explain the significance of the case. You could perhaps use a sentence from later down: "It was the first litigation of aboriginal title in the United States in the Court by an indigenous plaintiff since Cherokee Nation v. Georgia (1831)." Or better, explain what precedent it set. What bearing did the decision have on later cases or on the evolution of Native American law?
  • This case is somewhat different from WKA in that there were multiple issues litigated before the Court. Thus, I don't think it is desirable to slavishly copy the WKA article's structure on this point. in terms of later cases on Native American law, the article includes that with reference to the specific issue of Native American treaties. I open to more specific suggestions on that point, but I am hesitant to add much from sources that do not mention this case. Savidan 16:04, 26 July 2012 (UTC)

• To increase accessibility, I would advise piping the self-help link in: "(whether through self-help or through the courts)" to something like "on their own" or "on their own volition" or something like that.
  • Self-help is somewhat of a term-of-art. I don't think either "on their own" or "on their own volition" really captures its meaning. Do you? I'm all for more accessibility, but not at the cost sacrificing meaning. Moreover, I think "self-help" is a term that non-lawyers use for the same concept. Savidan 16:04, 26 July 2012 (UTC)

• "the pre-emption right": I suggest piping the link to a plain-English equivalent. Perhaps "rights".
  • Good suggestion. I have piped to "exclusive right to purchase." Savidan 16:04, 26 July 2012 (UTC)

• "enrolled treaties are conclusively valid" could use some simplification or at minimum, a wikilink. I'm not sure what an "enrolled" treaty is, as opposed to one that, say, isn't enrolled.
  • Fair enough. I have added a wikilink to enrolled bill. An enrolled treaty is simply one that has been ratified by Congress and officially published as such. Savidan 16:04, 26 July 2012 (UTC)

• Wikilink "New York Attorney General" in the lead.
  • Done. Savidan 16:04, 26 July 2012 (UTC)

• "that state nonintercourse acts are not preempted by the Indian Commerce Clause, the federal Nonintercourse Act, or federal treaties" could use a little clarification/conversion to plain English.
  • I have added a wikilink to federal preemption, added a parenthetical summary of what a state nonintercourse act is, and changed the link simply to "Commerce Clause." I an open to some more specific suggestions about this sentence. I am hesitant to have to add too much here, as the purpose of this sentence is simply to summarize the holding of the companion SCOTUS case, which is not the central focus of the article. Savidan 16:04, 26 July 2012 (UTC)

• Under "Precedent", the first paragraph is uncited.
  • I have added cites. Savidan 16:04, 26 July 2012 (UTC)

• "claiming to hold unalienated aboriginal title" could be phrased more clearly. I'm not a legal expert, however, so I'm not sure what it actually means.
  • I have tweaked the wording. I hope this helps. Savidan 16:04, 26 July 2012 (UTC)

• "could not be obtained by against the holder of aboriginal": "obtained by against" doesn't parse for me.
  • Thanks for catching this. I removed the extra word. Savidan 16:04, 26 July 2012 (UTC)

• "In dicta at the end of his opinion": could this be more simply "At the end of his opinion"? "Dicta" is confusing to the lay reader, and the wikilink doesn't provide much assistance.
  • Very well. I have removed this word. Savidan 16:14, 26 July 2012 (UTC)

• "Cherokee Nation had been cited for the proposition": I'm unclear about what "cited" means in this context, or what the entire parenthetical means in this context.
  • I have split this sentence into two sentences and tweaked the wording. I hope this makes the meaning clear. "Cited" means about the same thing in the legal context as in any context where sources are cited. In other words, the litigant made the argument stated, and cited Cherokee Nation as the authority for that argument. Savidan 16:14, 26 July 2012 (UTC)

• General comment on "Precedent": I think this could be written more clearly and accessibly. I don't think it's necessary to eliminate legalese, but there seems to be more of it than is necessary. I would recommend following a strict chronology. I think we may also need an expansion on the history of Native American rights and treaties (not just in New York or the eastern U.S., but in general), since this is the contextual frame in which the case was considered. I'm not suggesting a huge addition: only enough for readers to fully grasp the background.
  • I have addressed your more specific comments about this section, and I hope those changes go some way towards resolving this comment. Could you be more specific about what you would like to see added? In my view, the purpose of this section is to summarize the Supreme Court cases prior to Fellows on the subject of aboriginal title. Thus, more on Native Americna right and treaties (a huge topic!), other than in the context of Supreme Court cases on aboriginal title, could get somewhat off topic. A more thorough summary can be found in aboriginal title in the Marshall Court, the "main" article for this section. Savidan 16:18, 26 July 2012 (UTC)

• "Both the sovereignty over and land title to modern-day western New York was disputed between (the colonies, and then states, of) New York and Massachusetts, both claiming the lands by virtue of their colonial charters": When did this dispute arise, and why? Also, the info in parentheses could probably be taken out of parentheses.
  • I have not seen a source that puts a precise date on the start of the dispute. Nor have I seen one that ascribes any particular motive to NY or MA other than the obvious: if the text of your charter arguably gives you a claim to a potentially valuable stretch of land, there's no reason not to assert that claim. I have removed the parentheses as you suggest. Savidan 16:23, 26 July 2012 (UTC)

• "part of the territory of New York, but Massachusetts would retain (and have the right to sell or assign) the right of pre-emption (the right of purchasing lands from Indians) to the lands" contains two parentheticals. I think one should be removed on clarity grounds or else the sentence should be split into two.
  • I have eliminated both. Savidan 16:26, 26 July 2012 (UTC)

• What, precisely, does "the lands in question" refer to? This isn't entirely clear to me.
  • The lands at issue in Fellows v. Blacksmith. I have fixed. Savidan 16:51, 26 July 2012 (UTC)

• This bit is convoluted and probably should be broken up into multiple sentences, with some sort of explanation of the motivations behind the transfers, if possible: "Phelps and Gorham defaulted on their payments to Massachusetts in 1790, and the pre-emption rights reverted to the state, which re-conveyed them to Samuel Ogden on behalf of Robert Morris on May 12, 1791"
  • I have split into two sentences, changed some wordings, and added a wikilink. Savidan 16:51, 26 July 2012 (UTC)

• I had trouble parsing the "Dispute" section. I felt the phrasing was convoluted at times, and it was hard to work out who was doing what and why. I would recommend attempting to simplify this as much as possible, while explaining clearly, with all the necessary context, how and why the Seneca were relocated and the historical context surrounding Native American relocations in general; were relocation treaties a federal policy priority at the time?
  • I have addressed your more specific comments about this section, and I hope that remedies this general concern. As for "why the Senecas were relocated," that's somewhat of a "big" question to ask. In general, one would suspect: greed for their land; a general dislike and distrust of non-assimilated Indian communities by non-Indians; etc. I don't know that it's possible or helpful for the purposes of this article to try to explain "why." Nor do I know if it is possible to generalize about the federal treaty policy (and certainly not with sources that mention this case). By there very nature, Indian treaties are an ad hoc affair. Savidan 16:51, 26 July 2012 (UTC)

• Can "forcibly refused" be more precise? I'm not sure how one goes about using force to refuse something. Did he assault the appraisers?
  • I have included an exact quote from the New York Court of Appeals in the footnote: "...refused to let them perform their duty in this respect, and removed them by force..." In my view, forcibly refused is a fair summary/paraphrase of this quote, but I would be open to an alternate suggestion. I am unable to say if his actions amounted to assault because the court's opinion is the only source for this point. Savidan 16:51, 26 July 2012 (UTC)

• "Agents of the company "expelled and dispossessed" Blacksmith "with force of arms." I think this needs to be attributed within the text instead of merely cited.
  • I have added more of the original text in the footnote. Savidan 16:51, 26 July 2012 (UTC)

• "Martindale's responses were not reported" by whom?
  • The Reporter of Decisions of the Supreme Court of the United States. I have clarified. Savidan 16:51, 26 July 2012 (UTC)

• The section on the opinion of the court is good.
  • Thank you. Savidan 16:51, 26 July 2012 (UTC)

• I'm going to stop here, at least for now. I think the main issues with the article are clarity and legalese. The main elements are there, but I think it would be better if you looked at it afresh and approached it as more of a narrative -- a story simply and plainly told -- than a technically correct legal description. What's most important is the context of the case, the full proceedings in the case and what bearing the case had on future aboriginal rights decisions.--Batard0 (talk) 14:18, 19 July 2012 (UTC)
  • Thanks for the comments! Due to the impending bar exam, I will address them after the 25th. Savidan 15:27, 19 July 2012 (UTC)
  • Thanks again for your comments. I have made a variety of edits to the article on your suggestions and responded above. As for the general comment about "legalese," I can only say that I have taken pains to avoid it. I am certainly willing to make the article as clear and accessible as possible, and will address every specific instance that is brought to my attention. But, I hope that is it possible to be both clear and "correct." I have used legal terms of art only where their meaning appears to me to be irreducible. Savidan 16:51, 26 July 2012 (UTC)