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A Survey of Eastern Indian Land Claims: 1970-1979
Get PDFThe eastern Indian land claims are a remarkable phenomenon of jurisprudence. Unmomentous at the time of their filing, the claims have given rise to litigation attracting nation-wide attention, judicial precedent directly affecting several dozen communities on the east coast, and debates in Congress raising political and constitutional questions that go to the heart of this nation\u27s policy toward Indian tribes. From a broad perspective, this essay surveys the eastern land claims cases and highlights some of the resulting significant legal and political developments
Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims
Get PDFThe land claims of the Passamaquoddy, Penobscot, Oneida, Mashpee, Narragansett, and other eastern Indian tribes have recently drawn attention to the federal statute governing alienation of tribal lands upon which the claims are based—25 U.S.C. § 177. This provision conclusively established, at least in theory, the exclusive authority of the federal government to extinguish aboriginal title to land. The actual practice was quite different, however, because some of the original thirteen states, accustomed to some degree of power under the Articles of Confederation in the field of controlling tribal Indian title, did not immediately acknowledge the complete federal preemption of that field under the Constitution. Section 177 and its predecessors, which are the focus of this article, provide the source of the cause of action common to all of the eastern land claims. The federal statutory restraint on alienation was enacted after more than 150 years of conflict between the colonies and the crown, and later the states and the federal government, over control of Indian affairs. This struggle for control, culminating in federal preemption of state power over Indian affairs under the 1789 Constitution, presages by two centuries similar power disputes between the states and the federal government during the twentieth century. Because section 177 is a cornerstone of the modem federal trusteeship over all Indian land, the federal role is instrumental in enforcing the statutory restraint on alienation, as it was in creating the restraint
Predicting What the Law Court Will do in Fact
Get PDFOver eighty years ago Oliver Wendell Holmes announced what became the manifesto of the legal realists when he stated: The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. Legal philosophers and professors of jurisprudence may justifiably quarrel with Holmes\u27 definition of law, but that definition continues to be useful to the practicing attorney engaged in the everyday business of counseling clients and advising them concerning the legality of anticipated activities. It is useful also to the trial court judge, bound by the decisions of an appellate court, who, if he is to be faithful to his obligation, will decide cases before him in accordance with his educated prophecy as to what the appellate court will do when presented with the precise issue which is before him. Perceived in this light a survey of the work of the highest appellate court of a state, such as is here presented by the editors of Maine Law Review, brings together in one place a concise collection of data which should enable the practicing lawyer more accurately to prophesy what the courts of that state will do in fact. Thus, this issue of Maine Law Review not only represents a tribute to the breadth of learning and the magnitude of work of our highest court, but can function as well as a guide to what we may anticipate in the future
Shellfish Regulation: Conservation and Discrimination
Get PDFThe economy of many coastal states depends heavily upon the shellfish industry. Shellfish such as lobsters and clams are an especially important marine resource for these states. In recent years, however, the supply of shellfish has experienced substantial declines. State laws that permit the harvesting of lobsters prior to sexual maturity, for example, have made the lobster industry dependent on the yearly additions to the lobster supply. The increasing demands for shellfish as well as the pollution of areas such as coastal clamflats have also contributed to the serious depletion of the shellfish resources in many areas. Despite the possible economic consequences of this depletion, the coastal states have neglected their responsibility for the conservation of shellfish resources. Various laws regulating shellfish resources attest to the absence of a coordinated plan to effectuate shellfish conservation. Many regulatory laws reflect the immediate demands of the native shellfish industry rather than the public\u27s need for long term conservation. The competing interests and tensions between the demand for adequate conservation measures and the dangers of discrimination in response to local fishing interests present difficult questions for our legislative, regulatory and judicial branches of government. Shellfish regulation efforts must recognize both the need for effective conservation measures and the public\u27s right of equal excess to fishery resources. This article, in two parts, surveys some of the problems and conflicts posed by diverse federal, state and local shellfish laws. The first part examines the demands on lobster and other inshore marine fisheries and the need for more effective conservation measures. The second part of the article illustrates the manner in which discriminatory laws may masquerade as conservation measures and infringe on the public\u27s historical right to take shellfish for personal and family usage
Jurisdictional Indictments, Informations and Complaints: An Unnecessary Doctrine
Get PDFIn the majority of jurisdictions in the United States, including the federal courts and Maine, a sufficient indictment, information or complaint is deemed an absolute prerequisite to a valid conviction. This right to a sufficient charging instrument is not subject to waiver and may be asserted at any time, even though not raised before or during trial or on direct appeal from a conviction. This characteristic of nonwaivability, probably unique among the rights belonging to a criminal defendant, has led some courts, including the Maine Supreme Judicial Court, to characterize the requirement of a sufficient indictment as jurisdictional. When an insufficient indictment is viewed as a jurisdictional defect, an otherwise valid conviction may be barred without judicial inquiry into questions of waiver, prejudice to the defendant, or compliance with the underlying purposes of the charging instrument. The question that this article discusses is whether the failure of a charging instrument to state an offense should be considered a jurisdictional defect, cognizable at any time and capable of depriving a court of the power to try or sentence a defendant. Stated conversely, does the insufficiency of a charging instrument involve constitutional rights so fundamental that they can never be deemed waived, even when they are not asserted until years after trial on post-conviction collateral attack
Disposition of Life Insurance Proceeds When Owner Beneficiary Murders the Insured: Estate of Draper v. Commissioner
Get PDFA beneficiary of a life insurance policy who has murdered the insured generally is barred from receiving the proceeds of the policy covering the life of the deceased. This rule reflects the common law maxim that no one shall be permitted to profit from his own wrong. Some courts have also denied the beneficiary recovery on the ground that it is unreasonable to hold that the insurer assumed the risk of the beneficiary\u27s intentional killing of the insured. Other courts rely primarily on the rationale that public policy forbids construing contracts in a manner that encourages or rewards crime. Although these principles establish that a murderer should not receive the proceeds as beneficiary of a life insurance policy, they do not determine specifically who should receive those proceeds. In Estate of Draper v. Commissioner, the First Circuit Court of Appeals ruled that where an owner beneficiary murders an insured, the insured\u27s estate is entitled to the benefit of the insurance proceeds. While the court of appeals ultimately confronted the issue of determining estate tax liability, resolution of that issue necessitated a detailed analysis of the underlying rights and liabilities of the various parties involved. This Note will focus on the problems attending disposition of proceeds of a life insurance policy when the owner beneficiary, who was the contracting party, has intentionally murdered the insured. Resolution of the conflicting claims of the parties requires analysis of the legal and equitable interests of the insured, the insurer, and the owner beneficiary. This analysis will suggest that the proper accommodation of the interests considered in Draper depends upon recognition of the legal significance of the beneficiary\u27s ownership of the policy. The principle that one should not profit by his own wrong should not be extended to deprive the murderer of his pre-existing property rights, as owner, in the cash surrender value of the policy
The Encroachment of Rule 10b-5 on State Corporation Law
Get PDFIn 1967, Santa Fe Industries undertook the acquisition of the Kirby Lumber Co. by the publication of a tender offer. By 1973, Santa Fe through its subsidiary, Santa Fe Natural Resources, had acquired ownership of 95% of Kirby\u27s common stock. In 1974, Resources undertook the elimination of the remaining shareholders in Kirby by short form merger of Resources and Kirby. On July 11, Resources organized a shell corporation, Forest Products, Inc., under Delaware law and transferred to it its entire holdings in Kirby in return for all of Forest Products\u27 stock. On July 30, the board of directors of Forest Products adopted and executed a merger resolution providing that Forest Products would be merged into Kirby, with Kirby as the surviving corporation. On August 1, 1974, S. William Green and the other minority shareholders of Kirby were notified of the completed merger and offered a cash payment of $150 per share held. They responded by filing a demand on August 21 with the Delaware Court of Chancery for an appraisal of their equity interest, the only remedy Delaware provides for dissenters to a short form merger. On September 9, 1974, Green and the others withdrew their appraisal demand and initiated a suit in the Federal District Court for the Southern District of New York. The complaint alleged that the consummation of the merger constituted fraud under section 10(b) of the Securities Exchange Act of 1934 and the corresponding regulation, rule 10b-5. Rescission of the merger and damages were requested. The district court dismissed the complaint, holding that as long as full and fair disclosure is made, transactions eliminating minority interests are beyond the purview of rule 10b-5. On appeal the Second Circuit in a divided panel decision reversed. Judge Medina writing for the majority ruled that a short form merger consummated without a justifiable business purpose was a breach of fiduciary duty owed by the majority shareholders to the minority, that such a breach constituted fraudulent conduct cognizable under rule 10b-5, and that the fact that Delaware law allowed the minority only an appraisal remedy did not preclude the federal courts from granting additional relief. In a strongly worded dissent Judge Moore disagreed on the grounds that the decision extended to the plaintiffs an independent, substantive right totally unrelated to the anti-fraud scheme of the federal securities laws and in complete derogation of a valid state rule regulating corporate activity.” A rehearing en banc was denied on the grounds that the case was of such extraordinary importance that the decision should be reviewed by the Supreme Court. Certiorari was subsequently granted
White Collar Crimes
Get PDFThis Article deals with those sections of the Maine Criminal Code which criminalize certain nonviolent conduct. Many of the offenses contained in the Chapters on bribery, fraud and falsification are new to Maine law. Here, as elsewhere, the drafters of the Code have attempted to distinguish between conduct that is sufficiently detrimental to community interests to require the criminal sanction and conduct that is regarded as merely undesirable. These sections in particular represent the societal interests in preserving the integrity of documents, official statements and public offices, and in encouraging honesty in business transactions. This Article focuses on the derivation and novel features of these nonviolent offenses. Embezzlement and tax fraud are not considered here, however, since the former is discussed in the Property Offenses Article in this issue and the latter is not covered by the Code
Liability Limitations of Stock Exchange Maintenance Rules
Get PDFThe Securities Exchange Act of 1934 obligates individual exchanges and dealer associations to exercise a limited duty of self-regulation. The exchanges and associations have met their responsibility by promulgating rules governing the conduct of their members, including the exchange margin maintenance rules. For many years, enforcement of the rules was left to the exchanges and to the Securities Exchange Commission. Recently, however, courts and commentators have discussed and undertaken judicial enforcement of exchange rules by implying an investor\u27s cause of action against a broker or dealer from the power of the federal courts to effectuate the purposes of the Securities Exchange Act. Present law in the area of implied civil liability for exchange rule violations is inconclusive, suggesting that only those rules which recapitulate a provision of the federal regulations are actionable. This Comment considers whether a broker should be civilly liable for violation of the exchange margin rules in the context of the governmental policy behind the rules and their function in the federal regulatory scheme