October 13, 1877 – Birth of Josephine Clara Goldmark, Labor Law Reformer

Josephine Clara Goldmark, born on this date in Brooklyn in 1877, was a vehement advocate of labor law reform who had outsized influence thanks to the fact that she was the sister-in-law of Louis Brandeis.

Josephine Goldmark

Goldmark was the youngest of ten children born to parents who had strong liberal beliefs. After her father’s death in 1881, the Jewish Women’s Archive recounts that two of her brothers-in-law became important father figures: Felix Adler, founder of the Society for Ethical Culture, who married her eldest sister, Helen, in 1880; and Louis D. Brandeis, who married her sister Alice in 1891. Brandeis, a Boston lawyer who in 1916 became the first Jewish justice of the United States Supreme Court, was a cousin of the Goldmark family; he and Josephine were descended from the same great-grandfather. Both the Brandeis and Goldmark families reportedly had a rationalist and assimilationist bent, but retained a strong Jewish identity.

Goldmark graduated from Bryn Mawr College in 1898 and then taught for a while at Barnard College. One of her sisters introduced her to Florence Kelley, a powerful New York City reformer, and Goldmark left Barnard to work with Kelley at the National Consumers League (NCL). She eventually became chairman of the committee on labor laws. She investigated labor conditions extensively and wrote prolifically about her findings. It was the team of Kelley and Goldmark who approached Louis Brandeis to submit a brief on behalf of Oregon. As Mike Wallace notes in Greater Gotham:

Of the voluminous document, only two pages dealt with legal issues. The rest, compiled by researchers working under Goldmark’s supervision, provided an annotated compendium of social science and medical studies and reports on European practices all aimed at demonstrating the ‘special susceptibility to fatigue and disease which distinguished the female sex, qua female.'”

This document became known as the famous “Brandeis Brief” that her brother-in-law presented to the Supreme Court in Muller v. Oregon (208 U.S. 412, 1908), detailing the effects of industrial work, low wages, and long hours on workers, particularly women and children. The brief was instrumental in getting the Supreme Court to declare that state maximum-hours laws were constitutional, and the technique used – the gathering and presentation of socially relevant facts—became the main instrument for shaping American law according to social need rather than judicial precedent.

In 1911, Goldmark was part of the investigating committee into the Triangle Shirtwaist Factory Fire. The following year, the Russell Sage Foundation published her book Fatigue and Efficiency, a study of the effects of long hours on workers’ health and job performance. She continued to write and publish studies on working conditions for women and children until her death in December 1950 from a heart ailment.

August 21, 1939 – Civil Rights Protest at the Alexandria, Virginia Library

One of America’s first sit-ins for civil rights took place in the public library of Alexandria, Virginia on this date in history.

At the time, the present-day Barrett Branch Library on Queen Street was the only library building in a city with a population of 33,000. Although it was financed for the most part with taxpayer money paid by both blacks and whites, it was only open to whites.
 
Samuel Wilbert Tucker (1913-1990) grew up only two blocks from the Barrett Branch but was not allowed to use it. He also had to travel over a mile to attend a high school for black children, even though there was a high school closer to him.

Samuel Wilbert Tucker

Tucker attended Howard University for his undergrad degree and studied law on his own at the Library of Congress. He passed the bar at age 20, but was too young to be sworn in until the following year. He understood personally the importance of libraries, and resolved to gain access for blacks to the public library in his community.
 
In the summer of 1939, Tucker, then 26, selected a group of African American men to help him challenge the status quo. A black history site relates:
 

On Friday, August 21, 1939, a young African American entered and asked to register for a library card. When he was refused, he picked up a book, took a seat, and began to read. Minutes later, another well-groomed and polite young adult repeated these actions. This continued until William Evans, Otto L. Tucker (the attorney’s brother), Edward Gaddis, Morris Murray and Clarence Strange occupied five tables. Each one sat in silence and read a book.”

As the Washington Post reports, the assistant librarian, Alice Green, told the men: I’m sorry, you fellows will have to leave. This library is for whites only.’ The readers maintained silence.”

The library’s page, the Post continues, “ran to the lodgings of Catharine Scoggin, the head librarian. ‘Oh mercy, Miss Scoggin, there’s colored people all over the library!’” Scoggin hurried off to discuss the situation with the city manager and the chief of police.

The youths involved, between the ages of 18 and 22, were five out of an initial group of 11 who were recruited and secretly trained by Tucker over a 10 day period, according to the Alexandria Black History Museum. Tucker instructed them on what to say, what to wear, and how to act, precisely so there could be no accusations of bad conduct of any kind.

Nevertheless, you would have thought it was Starbucks in 2018; the library staff called the police. Clarence Strange’s brother ran to Tucker’s law office to let him know the police were on the way.
 
Officers arrived and escorted the protestors from the library, arresting them for “disorderly conduct.” Samuel Tucker brought a photographer, who took a photo, and then quickly arranged for the release of the men. He wanted to challenge the city in court, but the city resisted and stalled, lest it be forced to integrate.

Police escorting out the would-be readers from the library

Unfortunately, Tucker became seriously ill and was unable to pursue the case himself. In 1940, community leaders proceeded without him and accepted the promise of a “separate but equal” library. The Alexandria Library Board quickly approved the construction of a “colored library,” the Robert H. Robinson Library. It appropriated funding for books, and hired an African American librarian. (That building currently serves as the Alexandria Black History Museum.)
 
Tucker was infuriated, and insisted on equal protection under the law, writing:

I refuse and will always refuse to accept a card to be used at the library to be constructed and operated at Alfred and Wythe Streets in lieu of [a] card to be used at the existing library on Queen Street for which I have made application.”

The Black History Museum contends:

Samuel W. Tucker ingeniously combined two tactics that would become the cornerstone of the Civil Rights movement. He attacked the system of Jim Crow through direct-action, the sit-in, and acted as counsel for the trials that followed questioning the legality of segregated libraries.”

While the sit-in received national media attention, it was soon overshadowed by the opening of a new world war.
 
Tucker remained a leader in the war for equal rights, serving a as the lead lawyer for the National Association for the Advancement of Colored People (NAACP) in Virginia. He appeared before the U.S. Supreme Court four times, and was a founding partner in the prominent Richmond law firm, Hill, Tucker, and Marsh.

Sen. Edward Brooke of Massachusetts, then the Senate’s sole black member, said of Tucker in 1975:

He is really one of the most brilliant minds that I know, a man of great integrity. He is always on the firing line when he believes injustice is being done or some wrong needs to be righted.”

 
On October 19, 2000, a decade after Tucker’s passing, his hometown dedicated its newest elementary school in his honor.

August 9, 2017 – Nepal Criminalizes “Period Huts”

On August 9, 2017, Nepal criminalized the practice of forcing females to move out to huts when they are menstruating. The law as written however would not come into effect until August 2018. The delay was to allow social campaigns to educate the populace about the new law.

This practice, known as chhaupadi, stems from an ancient Nepalese tradition dictating that females must be sequestered in small animal sheds outside the home during menstruation or after childbirth, as they are considered to be impure at those times. They are barred from entering their homes and forbidden from touching men, some animals, and some foods.

As the U.N. reported, chhaupadi leaves women susceptible to illness, rape and animal attacks. Between November, 2016 and the time of the passage of this new law, five women died while in exile, according to a nonprofit working in the western region.

The Supreme Court of Nepal had ruled in 2005 that the practice was illegal, but the ban has been widely ignored. This new law imposed a three-month jail sentence and a fine.

According to the BBC, challenges would still remain. Apsara Neupane, who was elected deputy mayor of Chandannath municipality in western Nepal in 2017, said the main problem was changing people’s behavior:

“Having a strong law is important but reforming social customs may take more time. In any case, I am glad to see that there has been a gradual change in how people perceive the Chhaupadi practice.”

“Period Hut”

Nevertheless, NPR reported on a 2019 study finding that 77% of west-central Nepali girls and young women actively practice menstrual exile, based on a survey of 400 14-to-19-year-olds. And while 60% of them were aware that chhaupadi is illegal, that knowledge made them no less likely to practice it.

Unfortunately, COVID has only made the problem worse. According to Global Citizen, the pandemic exacerbated taboos around menstruation in communities that honor the practice. Households are attempting to stay “clean” by forbidding menstruating girls from touching communal objects.

A menstrual shed in western Nepal. photo via Poulomi Basu/VII

July 19, 1958 – Lunch Counter Sit-In Civil Rights Protest in Wichita, Kansas

One of the first lunch-counter sit-ins to protest segregation was not the famous one in 1960 in Greensboro, North Carolina, but occurred two years earlier in Wichita, Kansas.

In July of 1958, Ron Walters, 20, President of the local NAACP Youth Council, and Carol Parks-Haun, 19, his cousin, decided to protest at restaurants which denied services to blacks in Wichita.

Carol Parks and Ron Walters, pictured in 1958. Courtesy: Rosie Hughes

Ronald William Walters was born in Wichita on July 20, 1938, the oldest of seven children of Gilmar and Maxine Fray Walters. His father was a career Army officer and later a professional bassist; his mother was a civil rights investigator for the state.

Wichita was heavily segregated in the late 1950s, with schools segregated and blacks excluded from public accommodations. Walters got his own lunches at a Woolworth’s store, which would only serve blacks bagged lunches sold from one end of the lunch counter. Seeking to find a way to protest against the practice, he and his cousin met with attorney Frank Williams, who described a sit-in by students at a California college. They succeeded in ending segregation at a campus restaurant by occupying it with black students reading newspapers all day long. The protest was inspired by the actions of the Little Rock Nine and the earlier Montgomery Bus Boycott.

Walters and Parks-Haun organized a sit-in at Dockum Drugstore — a popular eatery with a soda fountain that only served white customers. Beginning on July 19, 1958, ten well-dressed and polite black students attempted to place orders while sitting at the lunch counter. Students sat quietly all day at the counters, enduring taunts and threats from white customers. The sit-in ended three weeks later when the owner, who felt he was losing too much money, relented and agreed to serve black patrons.

Dockum Drugstore, Wichita

According to NPR, the Dockum Drugstore sit-in failed to achieve national visibility in large part because the local newspaper didn’t want to scare away advertisers. In addition, the NAACP did not sanction sit-ins at the time. A year and a half later, sit-ins would erupt across the South and attract substantial media attention.

Wichita Historian Gretchen Eick maintained the Dockum Drug Store sit-in set “a precedent that really began what would be a very significant strategy — a strategy that would change the way business was done in the United States.” Ultimately, all of the Dockum locations in Kansas were desegregated. In 1998, a 20-foot-long bronze sculpture was created at a cost of $3 million to mark the site of the successful sit-in, with a lunch counter and patrons depicting the protest.

Wichita black students at the sit-in

Ronald Walters went on to graduate from Fisk University with a degree in history in 1963 and then earned a master’s in African studies in 1966 and a doctorate in international studies in 1971, both from American University. He taught at Syracuse University in the late 1960s, was a visiting professor at Princeton and a fellow at the Institute of Politics at Harvard and, in 1969, became the first chairman of Afro-American studies at Brandeis University. From 1971 to 1996 he taught at Howard University, including 15 years as chairman of its political science department.

Ronald Walters in 2006

Dr. Walters wrote 13 books and scores of articles on racial politics. Walters made a significant mark on the civil rights movement — as a teacher, an author, a television commentator and an adviser to activists and politicians. On the occasion of his death in 2010, Vernon Jordan said:

He was an indispensable part of the brain trust of the movement. He was there for all of us, at the other end of the phone, if we needed his thinking, his synthesis of racial issues, political issues, economic issues. And he was always at the ready to get on the train to help the cause.”

June 18, 1798 – U.S. Congress Passes the First of the Alien and Sedition Acts

From 1778 to 1783, France and Britain were at war. Both countries exerted pressure on the U.S. to join the war on their side. President Washington urged the country to avoid “entangling alliances.” But there was no agreement in the country. Historian Joel Richard Paul explains in his book Without Precedent, “supporters of neutrality coalesced into the Federalist Party [led by Washington], and critics of the administration formed the Republican Party, led by Jefferson.”

As tensions between the two parties increased, bitter acrimony increased, played out in the press. Adams condemned partisan tendencies “to go all lengths of profligacy, falsehood, and malignity in defaming our government.”

Furthermore, as James F. Simon observed in his history What Kind of Nation, “the fact that the majority of new citizens, primarily immigrants from France and Ireland, were joining Jefferson’s party was not lost on the Federalists.”

In the summer of 1798, the hard-line Federalists in Congress, supported by President Adams, passed four laws focusing on “patriotism” and the stifling of dissent.

John Adams, lithograph circa 1828 via Library of Congress

As the Library of Congress summarizes them:

These acts increased the residency requirement for American citizenship from five to fourteen years, authorized the president to imprison or deport aliens considered “dangerous to the peace and safety of the United States” and restricted speech critical of the government.”

The acts in order of passage were:

• An Act to Establish an Uniform Rule of Naturalization (Naturalization Act) June 18
• An Act Concerning Aliens June 25
• An Act Respecting Alien Enemies July 6
• An Act for the Punishment of Certain Crimes against the United States (Sedition Act) July 14

Passing the acts was justified as necessary to national security, but in reality the acts were aimed at silencing critics of the president. (Regarding the Naturalization Act, for example, at the time, the majority of immigrants supported Thomas Jefferson and the Democratic-Republicans, the political opponents of the Federalists.)

The Act Respecting Alien Enemies, which gave the president the authority to confine or deport aliens of an enemy country during a state of war, was the most popular of the four. The least popular and most controversial was the Sedition Act, which provided for a fine of up to $2,000 and a sentence of up to two years in prison for “false, scandalous and malicious” accusations against the president, the Congress, or the government.”

As Robert Goodloe Harper, the Federalists’ leader in the House, stated, the purpose of the Sedition Act, passed on July 14, 1798, was “to protect the country from the enemy within, namely the Republican party.” (Simon, p. 51):

The Sedition Act, Harper said, was a necessary response to the treacherous tendencies of the French faction in the country – Jefferson’s Republicans.”

In fact, the claim was not without merit. Jefferson, who was the Vice President of the country from 1797 to 1801, had been meeting secretly with Edmond Charles Genêt, better known as Citizen Genêt, the newly appointed French minister to the United States. Jefferson was anxious for Genêt’s help to elect a Republican majority in Congress in return for support for an alliance with France and a removal of tariffs on French imports. Professor Paul writes:

Jefferson made clear that his enemies – the Federalists [which included President George Washington], particularly Adams and Hamilton – were France’s enemies. . . . From these conversations, Genêt formed the misimpression that the president was irrelevant and that an appeal to Congress, or to the people directly, would be more effective.”

Jefferson also secretly drafted the Kentucky and Virginia Resolutions against the acts, asserting that, as historian Paul wrote:

. . . the Constitution was nothing more than a mere ‘compact’ among states, and as a consequence, each state had the right to nullify any federal law with which it disagreed.”

Thomas Jefferson

In any event, negative reaction to the acts helped contribute to the victory of Jefferson and the Republicans in the 1800 elections. Congress repealed the Naturalization Act in 1802, while two of the other acts were allowed to expire. The Alien Enemies Act, however, remains in effect as Chapter 3; Sections 21–24 of Title 50 of the United States Code. It was used by the government to identify and imprison enemy aliens from Germany, Japan, and Italy in World War II. (This was separate from the Japanese internment camps used to remove people of Japanese descent from the West Coast.) After the war they were deported to their home countries. In 1948 the Supreme Court determined that presidential powers under the acts continued after cessation of hostilities until there was a peace treaty with the hostile nation.

Most recently, Donald Trump used the law as as justification for his Muslim ban. In response, several Democratic senators have attempted to have the Alien Enemies Act repealed.

As for the Sedition Act, although that act expired, the US does have a law, enacted during the Civil War, against seditious conspiracy, (involving two or more people) outlined in Section 2384 of the penal code. Most recently, some members of both the Oath Keepers and of the Proud Boys were found guilty by a jury in the District of Columbia of seditious conspiracy and other charges for crimes related to the breach of the U.S. Capitol on Jan. 6, 2021. (Note: Sedition differs from treason (defined in Article III of the U.S. Constitution) in a fundamental way. While seditious conspiracy is generally defined as conduct or language inciting rebellion against the authority of a state, treason is the more serious offense of actively levying war against the United States or giving aid to its enemies.)

April 29, 1868 – Treaty of Fort Laramie Granting (for a while) the Black Hills to the Sioux Nation

The Black Hills, the oldest mountain range in the United States, stretches across South Dakota and Wyoming. It was given the name by the Sioux because of the thick dark forest of pine and spruce trees covering the hills.

The Black Hills, South Dakota, United States image from space

Pursuant to the Treaty of Fort Laramie of April 29, 1868, 15 Stat. 635, 636, the United States confirmed in the Sioux Nation recognized title to all of the present-day South Dakota west of the Missouri River, and the government agreed to keep unauthorized persons out.

In 1874, George Armstrong Custer led a large expedition into the Black Hills, in direct violation of the Ft. Laramie Treaty. Unfortunately, gold was discovered near what later was Custer City, which led to a mad rush of prospectors and miners to the area.

Custer Expedition into Black Hills, 1874, photo by William H. Illingworth. Custer in light colored clothing to left of center.

President Ulysses S. Grant felt that even the army (not sympathetic to Native Americans in any event) could not hold back the greedy onrush, and he offered the Sioux $6 million if they ceded the Black Hills to the U.S. They declined the offer.

The Army in the area was commanded by William Sherman and Phil Sheridan. Sheridan, appointed by Grant in 1867 to head the Department of the Missouri and “pacify” the Plains, allegedly declared that “The only good Indians I know are dead.” Sheridan steadfastly denied ever saying that, but he wrote to Sherman, the Commanding General of the U.S. Army:

In taking the offensive I have to select that season when I can catch the fiends; and if a village is attacked and women and children killed, the responsibility is not with the soldiers, but with the people whose crimes necessitated the attack.”

Sherman responded to Sheridan:

I will back you with my whole authority… I will say nothing and do nothing to restrain our troops from doing what they deem proper on the spot, and will allow no mere vague general charges of cruelty and inhumanity to tie their hands, but will use all the powers confided to me to the end that these Indians, the enemies of our race and of our civilization, shall not again be able to begin and… carry out their barbarous warfare.”

An 1866 painted portrait of Sherman, by George P.A. Healy

Sherman was in fact in favor of total extinction of Native Americans. In 1866, Lieutenant Colonel William Fetterman and his troops in Wyoming were massacred by the Sioux in revenge for the Sand Creek Massacre of Native Americans by the Army in 1864. Sherman wrote to Grant:

We must act with vindictive earnestness against the Sioux, even to their extermination, men, women, and children.”

Nevertheless, Sherman was part of the commission that signed the 1868 treaty with the Sioux in 1868.

Negotiations for the Treaty of Fort Laramie at Fort Laramie in Wyoming Territory in 1868. Photo: Department of Defense / National Archives and Records Administration

As historian David Smits observed in “The Western Historical Quarterly,” part of the treaty allowed the Sioux to hunt buffalo north of the Platte River, and Sherman hated the idea:

He was determined to clear the central plains region between the Platte and the Arkansas of Indians so that the railroads, stage lines, and telegraph could operate unmolested.”

Moreover, as Smits pointed out, Sherman knew that as long as the Sioux hunted buffalo, they’d never be satisfied with a life of farming on reservations. Thus he came up with the idea of killing off all the buffalo. To that end, the army sponsored hunting expeditions in the Great Plains, even accompanying hunting parties as escorts, teamsters, and cooks.

Officers at military posts issued hunting passes freely to troops to supplement their rations. Shooting buffalo was also a form of entertainment for the troops, and contests were held to see which individual or team could kill the most in a specified time. Smits notes “The total number of buffalo killed by the frontier army in the post-Civil War period should not be underestimated.”

Sherman was right about the impact of the destruction of the buffalo on the Native Americans. Smits writes that “Of all the white people’s activities in Indian country none enraged and disheartened the Native Americans more than the destruction of their buffalo.” The Kiowa chief Satana said in a speech given at the Medicine Lodge Treaty council in October, 1867, “when I see it [the destruction of the wood and of the buffalo] my heart feels like bursting with sorrow.”

Photo from the 1870s of a pile of American bison skulls waiting to be ground for fertilizer.

The combined effort by Sherman to rid the Plains of buffalo and facilitate the installation of railroads crossing the Plains sealed the fate of the Native Americans. As a “bonus” the Natives became totally dependent on the federal government for food, clothing, and other provisions, thus rendering them more pliant.

Grant had a more “compassionate” feeling toward Native Americans, expressing a desire to see them “civilized and Christianized.” Nevertheless, after the discovery of gold in the Black Hills, he allowed his Secretary of the Interior, Columbus Delano, to write to Congress (Senate Documents, Volume 272) that the administration intended to “negotiate” with the Sioux “for the extinguishment of their right to the reservation embracing the Black Hills country, with a view to opening up the same to settlement…. at the earliest day practicable.”

Official Presidential portrait of Ulysses Simpson Grant, December 1874

On November 3, 1875, Grant presided over a secret meeting with General Sheridan and others at which they decided that since they could no longer prevent waves of miners invading the Black Hills, therefore Grant would relax the order keeping them out. The group also decided to force Sitting Bull, who had opposed the sale of the Black Hills, to relocate on agency land by January 31, 1876.

Grant authorized a military force to ensure Sitting Bull’s compliance, and after the deadline passed without it, Sheridan had his army march against Sitting Bull and his ally Crazy Horse. The force was led by George Armstrong Custer, who was known for his cruelty toward Native Americans. In the Battle of Little Bighorn on June 25-26, 1876, commonly referred to as “Custer’s Last Stand,” Custer and his men were annihilated by the Lakota Sioux and Northern Cheyenne warriors along the Little Bighorn River, and Custer’s body was mutilated. But the victory backfired; the backlash by whites against Native Americans, not only by white Americans but also by the government and the army, was fierce and devastating to them.

George Armstrong Custer poses with his Indian scouts during the Black Hills expedition of 1874. The man pointing to the map was named “Bloody Knife,” a member of the Cree tribe. Photograph by William Illingworth.

Specifically, Congress responded with the Agreement of 1877, also known as the Act of February 28, 1877 (19 Stat. 254). This Act officially took away Sioux land, ceding the Black Hills to the United States. This change flagrantly violated the 1868 treaty, which stipulated that its terms could not be changed unless three-fourths of the adult male Sioux population agreed. It also attached what the Sioux call the “sell or starve” rider (19 Stat. 192) to the Indian Appropriations Act of 1876 (19 Stat. 176, enacted August 15, 1876), cutting off all rations for the Sioux until they terminated hostilities.

Article 5 of the Act was particularly egregious. It delineated specifics of a food allowance, but added “or in lieu of said articles the equivalent thereof, in the discretion of the Commissioner of Indian Affairs.” This opened the door to outrageous abuse and graft in the Indian Department. Already in 1875, Grant had received a report of pervasive corruption at the Red Cloud Agency that furnished Sioux supplies in northwest Nebraska, near the Black Hills, with tales of putrid pork, inferior flour, rotten tobacco, and other shoddy goods foisted upon the tribe. Ron Chernow, Grant, p. 831)

The new 1877 Act also provided that “whenever schools shall have been provided by the Government for said Indians [mostly boarding schools off reservation and having the intent to strip the children of their culture], no rations shall be issued for children between the ages of six and fourteen years (the sick and infirm excepted) unless such children shall regularly attend school.”

3 Lakota boys before and after assimilation at a mandated school

The government operated as many as 100 boarding schools for Native Americans, both on and off reservations. Children were sometimes taken forcibly, by armed police. If parents wanted their children to have food, or even an education, federal schools were the only option; public schools were closed to Indians because of racism.

It was a grim fate, and continued to be so for many years. NPR reports:

. . . for decades, there were reports that students in the boarding schools were abused. Children were beaten, malnourished and forced to do heavy labor. In the 1960s, a congressional report found that many teachers still saw their role as civilizing American Indian students, not educating them. The report said the schools still had a ‘major emphasis on discipline and punishment.'”

And in fact, the 1877 punishment wasn’t the end of the government’s revenge. The Dawes Act of 1887 (also known as the General Allotment Act or the Dawes Severalty Act of 1887), adopted by Congress in 1887 (25 U.S.C. §331. Repealed. Pub. L. 106–462, title I, § 106(a)(1), Nov. 7, 2000, 114 Stat. 2007) authorized the President of the United States to survey American Indian tribal land and divide it into allotments for individual Indians. Those who accepted allotments and lived separately from the tribe would be granted United States citizenship. The Dawes Act was amended in 1891, in 1898 by the Curtis Act, and again in 1906 by the Burke Act.

Thus Indian landholdings were reduced from 138 million acres in 1877 to 48 million by 1934, when the Indian Reorganization Act reversed the Dawes Act. Of this 48 million acres, according to Vine Deloria & Clifford Lytle, American Indians, American Justice at p. 10 (1983), “nearly 20 million were desert or semiarid and virtually useless for any kind of annual farming ventures.”

The Sioux Nation brought a number of legal actions related to the taking of their property in the Black Hills, but were largely unsuccessful. For one thing, as the Supreme Court held in Lone Wolf v. Hitchcock (187 U.S. 553, 1903) that Congress had absolute power to abrogate Indian treaties. It also upheld forced allotment without the need for obtaining the consent of the tribes. Most of the legal action initiated by the Sioux therefore had to do with the payment for the land and whether interest was awardable as part of their just compensation. The Courts also reviewed jurisdictional issues, and the matter of whether each new action brought constituted res judicata (same claim) or collateral estoppel (different claims).

After World War II, in part to show gratitude to American Indians who served as “code talkers,” Congress passed the Indian Claims Commission Act, signed into law by President Truman on August 13, 1946. The Act (60 Stat. 1050, 25 USC 70a et seq.) established a special, temporary commission to hear claims of ‘any Indian tribe, band, or other identifiable group of American Indians’ extending back to the American Revolution against the United States. In order to be valid, however, the claims had to be brought within five years of the passage of the Act. Any claims not brought before August 13th, 1951 would be forever barred by the statute. But the cases wound their way through the courts slowly long beyond that date.

In spite of not often ruling in favor of the tribes, courts were occasionally sympathetic. Most notably, the ruling in the U.S. Court of Claims case United States v. Sioux Nation of Indians, 518 F.2d 1298 (1975) inveighed against “the duplicity of President Grant’s course and the duress practiced on the starving Sioux,” opining:

A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history, which is not, taken as a whole, the disgrace it now pleases some persons to believe.”

It should also be noted that in April, 2022, the US Interior Department released a report identifying more than 500 student deaths at Native American boarding schools from the early 19th century and continuing in some cases until the late 1960s. The Interior Department said that with further investigation the number of known student deaths could climb to the thousands or even tens of thousands. Causes included disease, accidental injuries and abuse.

April 12, 1937 – The Supreme Court Decides NLRB v. Jones & Laughlin Steel

In NLRB v Jones & Laughlin Steel Corp, 301 U.S. 1 (1937), the U.S. Supreme Court upheld the National Labor Relations Act of 1935, commonly referred to as the Wagner Act. At that time, Jones & Laughlin Steel Co. was the country’s fourth largest steel producer. The Jones & Laughlin dispute involved ten steelworkers who had been fired from one of the company’s mills for trying to organize a union.

The question before the Court was whether labor-management disputes were directly related to the flow of interstate commerce and so could be regulated by the national government.

Congress claimed authority to pass the Wagner Act under its power to regulate interstate commerce, enumerated in Article I of the Constitution. Jones & Laughlin challenged the law, arguing that the act was an attempt to regulate all industry, “thus invading the reserved powers of the States over their local concerns.” This went beyond the commerce power of Congress, they asserted. As Chief Justice Charles Evans Hughes wrote about the position of Jones & Laughlin, the company argued “the Act is not a true regulation of such commerce or of matters which directly affect it, but, on the contrary, has the fundamental object of placing under the compulsory supervision of the federal government all industrial labor relations within the nation.”

Charles Evans Hughes, Chief Justice of the U.S. Supreme Court

In his opinion, Justice Hughes observed first that “[t]he distinction between what is national and what is local in the activities of commerce is vital to the maintenance of our federal form of government.” The Court held that “[a]lthough activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential, or appropriate, to protect that commerce from burdens and obstructions, Congress has the power to exercise that control.”

In the instant case, the Court noted that “[t]he relation to interstate commerce of the manufacturing enterprise . . . was such that a stoppage of its operations by industrial strife would have an immediate, direct and paralyzing effect upon interstate commerce. Therefore, Congress had constitutional authority, for the protection of interstate commerce, to safeguard the right of the employees in the manufacturing plant to self-organization and free choice of their representatives for collective bargaining.”

Specifically, the National Labor Relations Act of July 5, 1935 empowered the National Labor Relations Board to prevent any person from engaging in unfair labor practices “affecting commerce.” According to Sec. 7. [§ 157]:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].”

Thus the Court held in part that “The Act imposes upon the employer the duty of conferring and negotiating with the authorized representatives of the employees for the purpose of settling a labor dispute. . . . .”

Moreover, it found that “The provision of the National Labor Relations Act, § 10(c), authorizing the Board to require the reinstatement of employees found to have been discharged because of their union activity or for the purpose of discouraging membership in the union, is valid.”

The Oyez website points out that Justice Hughes carefully limited the opinion to exclude situations in which an activity had such an inconsequential or remote impact on interstate commerce that it exclusively impacted local matters. 

In his dissent, however, Justice James C. McReynolds cited the lack of actual demonstrated effect on interstate commerce and questioned Congress’s enhanced power under the Commerce Clause. 

Chris Schmidt, writing for the Chicago-Kent College of Law SCOTUS blog, maintains:

The decision was a landmark ruling on the meaning of the Commerce Clause. Its reasoning granted far more authority to Congress to regulate economic relations than the Court had previously allowed. It was also a major victory for industrial and factory workers across the country. The Wagner Act helped usher in a new era of labor relations, one in which union power, backed by the authority of the federal government, entered into negotiations with industry on far more equal footing than before.”

But unions have been taking blows from other directions, recently for instance with the Supreme Court decision on June 27, 2018 in the case Janus v. AFSCME (No. 16-1466). By a 5-to-4 vote, with the more conservative justices in the majority, the court ruled that government workers who choose not to join unions may not be required to help pay for collective bargaining. The court overruled 41 years of precedent in deciding that requiring employees to pay fees violates their First Amendment rights.

April 8, 1913 – Seventeenth Amendment Wins Approval of Required Three-Fourths of State Legislatures

Before the passage of this amendment, U.S. senators were selected by state legislatures as directed by Article I, Section 3 of the Constitution, which holds that “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.”

A number of problems arose from this method, including political wrangles that led to seats going empty for long periods. Support gradually increased for the direct election of senators by the voters.

The first change came in 1866, when Congress passed a law regulating how and when senators would be elected in each state. But it did not solve the problem entirely. As the Senate Historical Office observes:

Intimidation and bribery marked some of the states’ selection of senators. Nine bribery cases were brought before the Senate between 1866 and 1906. In addition, forty-five deadlocks occurred in twenty states between 1891 and 1905, resulting in numerous delays in seating senators. In 1899, problems in electing a senator in Delaware were so acute that the state legislature did not send a senator to Washington for four years.”

Each year from 1893 to 1902, they report, a constitutional amendment to elect senators by popular vote was proposed in Congress, but the Senate fiercely resisted change.

In the early 1900s, states started to initiate changes on their own. Momentum for reform on the national level increased. William Randolph Hearst got into the game, championing the cause of direct election with muckraking articles and strong advocacy of reform. The Senate Historical Office related what happened next. Hearst hired a veteran reporter, David Graham Phillips, who wrote scathing pieces on senators, portraying them as pawns of industrialists and financiers. The pieces became a series titled “The Treason of the Senate,” which appeared in several monthly issues of the magazine in 1906. These articles galvanized the public into maintaining pressure on the Senate for reform.

By 1912, as many as twenty-nine states elected senators either as nominees of their party’s primary or in a general election. But a constitutional amendment was still required for a nationwide direct election process.

In 1911, Senator Joseph Bristow from Kansas offered a resolution proposing a constitutional amendment, and gained support from others who had come to the Senate via direct election. After the Senate passed the amendment, it went to the House, where it was finally approved in the summer of 1912 and sent to the states for ratification.

Connecticut’s approval gave the Seventeenth Amendment the required three-fourths majority, and it was added to the Constitution on this date in 1913. It was declared part of the Constitution, the 17th Amendment, on May 31 by Secretary of State William Jennings Bryan.

The following year marked the first time all senatorial elections were held by popular vote.

The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase “chosen by the Legislature thereof” with “elected by the people thereof.” In addition, it allows the governor or executive authority of each state, if authorized by that state’s legislature, to appoint a senator in the event of a vacancy, until a general election occurs.

March 30, 1870 – Ulysses S. Grant on the Passage of the Fifteenth Amendment

President Grant was a champion of Black rights; indeed, Frederick Douglass himself, who knew both Lincoln and Grant, thought more of Grant in some ways, saying of Grant after his presidential term:

To him more than any other man the Negro owes his enfranchisement and the Indian a humane policy. In the matter of the protection of the freedman from violence his moral courage surpassed that of his party; hence his place as its head was given to timid men, and the country was allowed to drift, instead of stemming the current with stalwart arms.”

The Fifteenth Amendment to the Constitution granted Blacks – now free from slavery – the right to vote, declaring that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” It was passed by the House of Representatives on February 25, 1869, and the Senate on February 26, 1869. It was ratified on February 3, 1870.

President Ulysses S. Grant

Grant was so pleased with its passage that he issued a special message to Congress, beginning by observing that “It is unusual to notify the two Houses of Congress by message of the promulgation, by proclamation of the Secretary of State, of the ratification of a constitutional amendment.” But he felt the momentous occasion merited special notice:

In view, however, of the vast importance of the fifteenth amendment to the Constitution, this day declared a part of that revered instrument, I deem a departure from the usual custom justifiable. A measure which makes at once 4,000,000 people voters who were heretofore declared by the highest tribunal in the land not citizens of the United States, nor eligible to become so (with the assertion that ‘at the time of the Declaration of Independence the opinion was fixed and universal in the civilized portion of the white race, regarded as an axiom in morals as well as in politics, that black men had no rights which the white man was bound to respect’), is indeed a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day.”

He concluded with a plea that continues to have urgency today:

I would therefore call upon Congress to take all the means within their constitutional powers to promote and encourage popular education throughout the country, and upon the people everywhere to see to it that all who possess and exercise political rights shall have the opportunity to acquire the knowledge which will make their share in the Government a blessing and not a danger. By such means only can the benefits contemplated by this amendment to the Constitution be secured.”

You can read the entire text of his message here.

March 26, 2015 Great Britain’s Repeal of Royal Marriages Act of 1772 Came Into Effect

The Royal Marriages Act 1772 (12 Geo 3 c. 11), repealed by the Succession to the Crown Act 2013, was an act of the Parliament of Great Britain enumerating the conditions under which members of the British Royal Family could contract a valid marriage. The purpose of the law was to guard against marriages that could diminish the status of the royal house. More specifically, the act was proposed by George III after the marriages of his brothers. In 1771, Prince Henry, Duke of Cumberland and Strathearnhad married the commoner Anne Horton. Then in 1773 the King learned that another brother, Prince William Henry, Duke of Gloucester and Edinburgh, had in 1766 secretly married Maria, the illegitimate daughter of Sir Edward Walpole and the widow of the 2nd Earl Waldegrave. Both alliances were considered highly unsuitable by the King.

King George III

The 1772 Act said that no descendant of King George II, male or female, other than the issue of princesses who had married or might thereafter marry “into foreign families,” could marry without the consent of the reigning monarch, “signified under the great seal and declared in council.” That consent was to be set out in the register of the marriage, and entered in the books of the Privy Council. Any marriage contracted without the consent of the monarch was to be null and void.

However, any member of the Royal Family over the age of 25 who had been refused the sovereign’s consent could marry one year after giving notice to the Privy Council of their intention so to marry, unless both houses of Parliament expressly declared their disapproval. There is, however, no instance in which the sovereign’s formal consent in Council was refused. (There were other informal ways to discourage marriages considered to be unsuitable.)

The Act further made it a crime to perform or participate in an illegal marriage of any member of the Royal Family. (This particular provision was repealed by the Criminal Law Act 1967.)

Edward VIII abdicated the throne in order to marry Wallis Simpson, twice divorced

A big change came about when the Church of England revised its policy on divorce and remarriage as a part of the General Synod in 2002, declaring:

The Church of England teaches that marriage is for life. It also recognizes that some marriages sadly do fail and, if this should happen, it seeks to be available for all involved. The Church accepts that, in exceptional circumstances, a divorced person may marry again in church during the lifetime of a former spouse.”

This change helped facilitate the repeal of the entire Marriages Act by Parliament in 2013. The Succession to the Crown Act 2013 repealed the Royal Marriages Act 1772. But all the countries in which the Queen is head of state had to pass necessary legislation before it took effect. This had already taken place pursuant to “The Perth Agreement,” an agreement made by the prime ministers of the 16 Commonwealth realms during the biennial Commonwealth Heads of Government Meeting in October, 2011 in Perth, Australia.

The agreement replaced male-preference primogeniture – under which male descendants take precedence over females in the line of succession – with absolute primogeniture; ended the disqualification of those married to Roman Catholics (a provision of the Act of Settlement of 1701) ; and limited the number of individuals in line to the throne requiring permission from the sovereign to marry to six. The ban on Catholics and other non-Protestants becoming sovereign and the requirement for the sovereign to be in communion with the Church of England remained in place.

Princess Margaret was “discouraged” from marrying the divorced Peter Townsend

By December 2012, all the realm governments had agreed to implement the proposals.

According to the BBC, the changes to the rules of succession were rushed through Parliament ahead of the birth of Prince George in 2013. The more limited provisions of 2013 Act included the following:

(1) A person who (when the person marries) is one of the 6 persons next in the line of succession to the Crown must obtain the consent of Her Majesty before marrying.

(2) Where any such consent has been obtained, it must be—
(a) signified under the Great Seal of the United Kingdom,
(b) declared in Council, and
(c) recorded in the books of the Privy Council.

(3) The effect of a person’s failure to comply with subsection (1) is that the person and the person’s descendants from the marriage are disqualified from succeeding to the Crown.

(4) The Royal Marriages Act 1772 (which provides that, subject to certain exceptions, a descendant of King George II may marry only with the consent of the Sovereign) is repealed.

(5) A void marriage under that Act is to be treated as never having been void if—
(a) neither party to the marriage was one of the 6 persons next in the line of succession to the Crown at the time of the marriage,
(b) no consent was sought under section 1 of that Act, or notice given under section 2 of that Act, in respect of the marriage,
(c) in all the circumstances it was reasonable for the person concerned not to have been aware at the time of the marriage that the Act applied to it, and
(d) no person acted, before the coming into force of this section, on the basis that the marriage was void.

(6) Subsection (5) applies for all purposes except those relating to the succession to the Crown.

Six realms in addition to the UK legislated for the changes: Australia, Barbados, Canada, the Grenadines, New Zealand, St Kitts and Nevis and St Vincent.

Nine others concluded that the legislation was not necessary: Antigua and Barbuda, Bahamas, Belize, Grenada, Jamaica, Papua New Guinea, St Lucia, Solomon Islands and Tuvalu.

Prince Harry was still required by the Succession to the Crown Act 2013 to seek permission from the Queen in order to marry. Harry and Meghan’s consent to marry was officially approved by his grandmother the Queen on March 14, 2018.

For a graphic showing all the Kings and Queens of England from 1066 to present day, check out this post.