Unsung hero: David Clarenbach worked to secure equal rights for gay and lesbian individuals10/20/2022
By Amy Rabideau Silvers Forty years ago, with the addition of just a few words to its nondiscrimination statute, Wisconsin became the first state in the nation to declare that gay and lesbian citizens were entitled to equal rights in housing, employment and public accommodations. It was, the law stated, “the right of all persons to have equal opportunities … regardless of their … sexual orientation.” The bill was signed by Republican Gov. Lee Dreyfus on Feb. 25, 1982. Wisconsin became known as “The Gay Rights State.”  David Clarenbach The successful legislation was largely credited to State Rep. David Clarenbach, a Democrat who still lives in Madison. The victory came with the radical strategy of not arguing about homosexuality but instead arguing for equal rights, he said, speaking in an interview with the Wisconsin Justice Initiative. Bipartisan support was crucial. Crucial to that support was winning the blessings of Wisconsin religious communities, including from Protestant, Jewish and Catholic leaders. “The Wisconsin Baptist convention voted to support AB 70,” Clarenbach said. “That was the beginning of the religious right movement, the so-called moral majority, and we were able to isolate the moral majority as the fringe movement that they are.” The effort included identifying what legislative members – both Democrat and Republican – needed political cover to vote for the antidiscrimination bill. “We would go to that person’s local Democrat and Republican clubs. We would go to that person’s minister or priest and talk about what was the moral thing to do,” Clarenbach said. “We didn’t ask them whether being gay was good or bad, to be encouraged or discouraged, whether it was sinful or not sinful. We asked whether bigotry and discrimination could be tolerated against any group in our society. And when that is the question, the answer is a resounding no.” Gay and lesbian activists supported the effort, though within the community there was debate about what should be the first goal – a bill to decriminalize sexual conduct or a bill banning discrimination in areas like housing and employment. Playing the long game New to the State Assembly, Clarenbach joined forces with Rep. Lloyd Barbee (D-Milwaukee), who had long proposed similar bills. Clarenbach, too, began playing the long game, formally introducing bills every year for eight years. Along the way, the language morphed from “sexual preference” to “sexual orientation” in the nondiscrimination bill. The other bill, renamed the Consenting Adults Bill, became the canary in the coal mine, gradually winning greater support, while the antidiscrimination “gay rights” bill stayed in committee. “We weren’t going to bring it out of committee until we had the votes,” he said. “By the ’81-’82 session, we knew we were really close. In 1981, the Consenting Adults Bill lost in the Assembly by one vote, defeated 50-49.” It was time to bring the antidiscrimination bill out for a vote. Not all Democrats voted for it, but the long campaign had won over enough Republicans to win approval. “The bill would not have passed in either house without the support of Republican legislators,” Clarenbach said. Gov. Dreyfus did not have to sign it but chose to do so. “It is a fundamental tenet of the Republican Party that the government ought not intrude into the private lives of individuals,” Dreyfus said. “And there is certainly nothing more private nor sensitive than who you love or how you love.”  Gov. Lee Dreyfus signing the antidiscrimination bill in 1982. Wisconsin was the first state to pass such a law. Photo courtesy of David Clarenbach. Winning consensus for consent Then it was back to the matter of the Consenting Adults Bill. The measure was next offered as a budget amendment and approved by the Democratic Assembly caucus. That should have cleared a path for approval. Instead, a few Democrats said they couldn’t vote for the budget bill because of it. Clarenbach made the difficult decision to withdraw the amendment. It was later reintroduced as a standalone bill in the next session of the Legislature, and despite pressure from the conservative right it won bipartisan approval. “In retrospect, I am certain that withdrawing the earlier amendment was one of the things that contributed to getting the Consenting Adults Bill passed,” Clarenbach said. “Suddenly I was seen in a different light and that next session I got elected speaker pro tem.” Democratic Gov. Tony Earl signed the Consenting Adults Bill into law on May 5, 1983. Once again, the right words helped make the case for the change. The issue was cast as one of “sexual privacy” – including for married heterosexual couples – rather than the repeal of what was known as the anti-sodomy law. It all made for some interesting debate. Clarenbach remembers quipping that “95% of the adults in Wisconsin have violated the law and the other 5% have no imagination.” Lest anyone think Wisconsin was going too wild, the final version of the bill included a disclaimer that “Wisconsin does not approve of sexual conduct outside of the institution of marriage.” The Consenting Adults Law ended an unusual legal situation created by the passage of the nondiscrimination bill, as the late Dick Wagner, a longtime gay advocate, activist and historian, once explained in an Our Lives article. Consider, Wagner declared, the “strange anomaly that for a year homosexual acts were technically illegal but you could not discriminate against people for them.” Clarenbach later won other legislative victories, including on bills banning discrimination in health care and insurance for patients with HIV/AIDS, signed into law by Republican Gov. Tommy Thompson.  Clarenbach in the State Assembly. Photo courtesy of the Wisconsin Historical Society. Image 67951.  Kathryn Clarenbach. Photo courtesy of David Clarenbach. Growing up political Clarenbach was born in St. Louis, Missouri, to politically progressive and involved parents. His mother, Kathryn Clarenbach, was a founder and the first chairwoman of the National Organization of Women (NOW). His father, Henry Clarenbach, who worked in real estate, served as a delegate to the Democratic Convention in 1968 and was active in the anti-war movement during the Vietnam War. Clarenbach has proudly and matter-of-factly talked about being raised in a feminist household. “My own involvement in civil rights and against the war in Vietnam was really part and parcel of what she was doing as a feminist leader on the front lines of that struggle,” he said in an interview for the Veteran Feminists of America Pioneer Histories Project. “So, we really were taught and believe that it’s all part of the same movement. It’s the humanist approach to society – that all of us are equal and should be treated as individuals who have equal opportunities. And we were shown that and that’s how we lived.” His parents moved their family back to Wisconsin in 1960. Clarenbach attended public schools and then the University of Wisconsin-Madison. It would be years before Clarenbach officially stepped out of the closet, publicly acknowledging his own sexuality. More than anything, the political dynamics were an early version of don’t ask-don’t tell. “I knew I was gay from my high school days and also knew that I wanted to be involved in public service,” Clarenbach said. “I was first elected at a time when openly gay and lesbian officials didn’t exist, less than three years after Stonewall took place,” he said, referring to the 1969 harassment and events that sparked the gay rights movement. “To predict that Wisconsin would pass the country’s first gay rights law would have been absurd.” At 17, he decided to run for the Dane Country Board of Supervisors. In 1972, he became the first 18-year-old elected to public office in Wisconsin, just months after the 18-year-old vote began that January. Other races followed. In 1974, Clarenbach was elected to the Madison Common Council, and then to the Wisconsin State Assembly at the age of 21. He served as speaker pro tem from 1983 until 1993.  Clarenbach presiding over a late-night budget debate in the 1980s. Photo courtesy of David Clarenbach. Indeed, his only unsuccessful campaign came in 1993 when he ran for Congress, hoping to represent Wisconsin’s 2nd District. Clarenbach went on to head The Gay and Lesbian Victory Fund, based in Washington, D.C. The group, now the LGBTQ Victory Fund, works to elect openly gay and lesbian candidates to public office. Politics and perspectives today These days, he’s a self-described “recovering politician,” still passionately interested in the politics of social and economic change. With the recent Supreme Court decision overturning Roe v. Wade, he said, there’s a “clear and present danger to a whole range of privacy-related precedents, including gay marriage and contraception.” “It’s a slippery slope,” Clarenbach said. “This is the McCarthy era all over again, and there are clear parallels to 1933 Germany …. There is a lot of work to do. Fundamental issues of civil rights and equality are at risk. “The challenge we have today is that the struggles are not over. Still today, the statutes don’t mention the transgender community. Still today, more than half the states don’t have LGBTQ protections. It’s hard for me to think that some Idaho legislator thinks it’s OK to fire someone, not for job performance, but for who they love. Or for someone to say, you can’t rent a house because you’re a lesbian, and that’s what the majority of states are still saying.” Wisconsin’s gay rights law continues to make a difference. The state Department of Workforce Development, for example, receives some 100 complaints a year regarding possible discrimination cases. “It’s a law that affects the real lives of real people. It’s not theoretical,” he said. “I’ve had people come up to me and say, ‘I moved to Wisconsin because of the law’ and ‘I came to the University of Wisconsin because I felt I could be safe here.’ Laws don’t change attitudes but they are a means to an end.” Is that what he is most proud of? Clarenbach laughed, saying he expects “the civil rights bill will be the lead to my obit.” “But I’m most proud of living a life that my parents would be proud of,” he said. He remembers his last day in the Legislature, presiding one final time as speaker pro tem. “I said my goodbyes and I received a standing ovation from both sides,” Clarenbach said, speaking with emotion. “I’ve tried to be an honest and decent person who treats others with civility, including those with whom I disagree.”  This project is supported by grants from   Joshua Glover escaped from slavery and started a power struggle between two supreme courts12/9/2021
By Margo Kirchner Second of two parts Beginning shortly after his escape from a Milwaukee jail in 1854, Joshua Glover was the catalyst for Wisconsin judicial and legislative declarations that the Fugitive Slave Act of 1850 was unconstitutional and void. “The real emphasis of Glover’s escape comes in the court actions after,” said Clayborn Benson, executive director of the Wisconsin Black Historical Society. Those decisions took the “Glover incident” to a national level, reported in newspapers across the country, he said. As described by author H. Robert Baker in The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War, “[t]he rescue of Joshua Glover became a six-year struggle not only to determine whether the Fugitive Slave Act was unconstitutional but to determine the substance and meaning of the Constitution itself.” Within days of the Glover jail break, Sherman Booth, the publisher of the Free Democrat abolitionist newspaper who helped whip up the crowd that freed Glover, was arrested and charged with aiding the escape of a fugitive slave in violation of the act. Booth appeared before the federal commissioner on March 21 and was released on bail until formal indictment and the next district court trial date in July. He kept reporting in his newspaper about his own case. In late May, the federal court commissioner sent Booth back to jail in the custody of U.S. Marshal Stephen Ableman. Booth applied to Wisconsin Supreme Court Justice Abram Smith for a writ of habeas corpus, arguing that his imprisonment by Ableman was illegal because the Fugitive Slave Act of 1850 was unconstitutional and his warrant was defective. Smith granted the writ, ruling that the act was unconstitutional. Ableman complied with Smith’s order for Booth’s release but appealed the decision to the full Supreme Court, then consisting of three justices: Smith, Chief Justice Edward Whiton, and Justice Samuel Crawford.  On July 19, 1854, in a two-to-one decision, the Wisconsin Supreme Court affirmed Smith’s decision to discharge Booth from custody. Whiton and Smith found that the state court had the power to protect the state’s citizens from illegal restraint, the warrant for Booth’s arrest failed to charge a crime, and the Fugitive Slave Act of 1850 was unconstitutional.
Whiton wrote the Act illegally conferred power on appointed commissioners, rather than judges. Second, he said, it denied the alleged fugitive the right to have his or her case tried to a jury in violation of the right to due process. Whiton focused on the danger to a free citizen of being taken into slavery when the evidence determining whether the person was a slave was presented in the state of the slave owner, with no opportunity for cross-examination of witnesses or submission of contrary evidence. The certificate of that court was then taken as conclusive in the state where the person was captured, causing the commissioner to order the person’s return. “We are at a loss to perceive how this proceeding, by virtue of which a freeman becomes a slave, can be justly called ‘due process of law,’” Whiton wrote. Smith concurred in a lengthy opinion based on the Constitution’s reservation of rights to the states. States, he wrote, retained the right to determine their own process for a slave owner’s claim. “In Virginia he may be, indeed, a chattel; but in Wisconsin he is a MAN. . . the laws of Wisconsin regard him as a person here,” Smith wrote. Moreover, he said, there was no basis for federal law enforcement or court officials’ involvement in the return of slaves. He continued: Had the Northern States imagined, that by assenting to this clause of the Constitution, they were thereby conferring upon the federal government the power to enter their territory in pursuit of a runaway negro, . . . to subject their houses to search, and to override their own laws and municipal regulations, and that they were parting with all power to regulate the mode of procedure by which that clause was to be carried into effect; does any sane man believe that they would ever have assented to it? Crawford dissented, writing that the Wisconsin courts should decline to interfere with federal custody and that Congress had the constitutional power to pass the act. The dissent is thought to have caused his loss to Orsamus Cole in the 1855 election. Ableman, the marshal, sought review in the U.S. Supreme Court. The state Supreme Court clerk forwarded the record to the U.S. Supreme Court when ordered. This is the second of two posts about Joshua Glover. Read the first one here. Meanwhile, in July 1854, Booth, and two other men who assisted Glover were indicted on criminal charges of aiding a fugitive slave in violation of the 1850 act. One, John Messenger, who had spirited the just-escaped Glover to a abolitionist's home in Waukesha, died shortly after his arrest and release on bail. The other, attorney John Rycraft, who had created a "vigilance committee" to ensure Glover's rights were protected, was tried and convicted in November 1854 and sentenced to ten days in jail and a fine of $200. Booth’s criminal trial took place in early January 1855. The jury found him guilty, and Miller sentenced him to one month of imprisonment and a fine of $1,000, with Booth to remain in custody until the fine was paid. A few days later Booth and Rycraft applied to the Wisconsin Supreme Court for writs of habeas corpus, arguing that the federal court trial proceedings were void. The Wisconsin Supreme Court held, this time 3-0, that Booth’s and Rycraft’s convictions were illegal and ordered them discharged from imprisonment. All three justices agreed that the indictments in the cases failed to charge and the evidence at the federal trial failed to prove any offense within the jurisdiction of the federal court. Unsung hero: Joshua Glover – His escapes from slavery and the law sparked state abolitionist action12/3/2021 By Margo Kirchner First of two parts The capture and escape of Joshua Glover in southeastern Wisconsin in 1854 sparked an abolitionist outcry and an attempt by the Wisconsin Supreme Court and Legislature to nullify federal slavery law. Two years earlier, Glover had escaped from slavery in St. Louis and established a life in freedom in Racine, but federal deputy marshals captured him in his home under the Fugitive Slave Act of 1850. Outraged citizens of Milwaukee and Racine broke Glover out of jail and sent him on the Underground Railroad. Glover eventually reached safety in Canada. Although Glover departed Wisconsin by mid-April 1854, his legal impact here had just begun. His escape from custody led to a struggle between state and federal authorities and the state’s defiance of the U.S. Supreme Court. Benammi Stone Garland purchased Glover, then known only by his first name, on January 1, 1850, on the steps of the St. Louis Courthouse. In May 1852, Glover escaped from Garland’s farm and crossed the Mississippi River to Alton, Illinois. Garland placed a reward notice in a Missouri newspaper on May 19, 1852, and ran the notice for about two weeks. Glover traveled about 350 miles to Racine, arriving in late spring or early summer. Racine was a bustling community of 5,000 people due to its trading post, harbor, and plank road to Janesville. About 60 Black or mixed-race adults were recorded in the city’s 1850 census. Glover found a job at a sawmill on the Root River a few miles out of town. He chose his last name and had his own home, where he lived freely for two years. Wisconsin’s antislavery movement was active by the early 1850s. The Burlington Liberty Association, the first antislavery society in the state, had been around since 1844. Sherman Booth published an abolitionist newspaper in Milwaukee called the Free Democrat. Chauncey Olin published the abolitionist American Freeman newspaper in Waukesha. The Underground Railroad (UGRR) stopped in Waukesha and elsewhere. And, as described by authors Ruby West Jackson and Walter T. McDonald, Racine was a “hotbed of abolitionist sympathizers.”* Clayborn Benson, executive director of the Wisconsin Black Historical Society, said in a recent interview that abolitionists were motivated by several reasons. Some opposed slavery on religious grounds, while others opposed slavery for political purposes as part of the developing Republican Party. Some were European immigrants with ancestors who had been enslaved, while “free-soilists” did not want to compete against the South’s unpaid labor when it came to agriculture. Although Wisconsin’s antislavery movement was vigorous, Blacks nevertheless were not close to being treated equally with Whites. They had the right to assemble and act as jurors, said Benson. But Blacks were still denied the right to vote, and Whites did not want Blacks living nearby. In 1850 Milwaukee, about 100 Blacks lived in a city of 20,000. Political battles raged in the nation over slavery in territories and newly formed states. Sentiment ran strongly in Wisconsin against slavery and its reach northward, and there was strong opposition to returning escaped slaves who had become Wisconsin residents. Many people in Wisconsin wanted “no part of enslavement,” said Benson. Slavery’s reach from the South, however, found support in the U.S. Constitution and federal law. Article IV, section 2 of the U.S. Constitution provided that a slave in one state would not be discharged from service by escaping to another state and would be delivered back to his or her owner on demand. The Fugitive Slave Act of 1793 established a process for slave owners to reclaim runaway slaves, but in southern eyes it did not have teeth. As part of the Compromise of 1850 between northern and southern states, a new fugitive slave act beefed-up the rights of slave owners to recover escaped slaves. A slave owner could obtain a court order in his home state confirming the status of a slave, then proceed to find and arrest the escapee with the assistance of federal marshals. A U.S. commissioner, rather than a regular district judge, could determine the fate of the person. Notably, the commissioner received a larger fee for sending a fugitive to slavery than for releasing him or her. The alleged fugitive slave was denied a jury trial or any other opportunity for testimony or defense. Moreover, the act created criminal penalties for citizens who helped escaped slaves or interfered with their return. This is the first of two posts about Joshua Glover. Read the second one here. The Fugitive Slave Act of 1850 “brings fire” to northern abolitionists and made them determined to help fugitives reach Canada, said Benson. Wisconsin politics included disagreements regarding whether the state had to defer to the federal government’s efforts to enforce the 1850 act. From 1850 to 1860 “there is turmoil,” Benson said. Garland remained intent on reclaiming Glover under the 1850 act. He somehow learned that Glover was in Wisconsin and provided a St. Louis court with proof of his ownership and Glover’s escape. The court ordered Glover’s removal from Wisconsin. Garland arrived in Milwaukee in early March 1854 with a St. Louis police officer and the Missouri court order. He swore out an affidavit and presented his paperwork to U.S. District Judge Andrew G. Miller, who issued a warrant for Glover’s arrest. Deputy U.S. Marshal Charles Cotton accompanied Garland and the St. Louis police officer to Racine, where they were joined by another federal deputy marshal. Garland and the officers surprised Glover at his home on Friday, March 10, 1854. After a physical struggle the officers subdued Glover and led him away in shackles. Several reports indicate that Glover was bruised and bloodied during the capture. Possibly because of the small size of the Racine jail or the abolitionist forces in Racine, the captors transported Glover to Milwaukee County’s larger and stronger jail located in Courthouse Square (now Cathedral Square).  Photo courtesy of the Wisconsin Historical Society – image 40833 Jailing Glover in Milwaukee also facilitated a quicker hearing because the commissioner and federal judge were located there. The one courthouse contained the federal district court, Milwaukee County courts, and county jail.
News of Glover’s capture spread through Racine. The editor of the Racine abolitionist newspaper printed a story in his Saturday edition and telegraphed word of the “kidnapping” to Booth in Milwaukee by early Saturday morning. Unsung hero: William T. Green, lawyer and activist, author of the state's first civil rights law9/8/2021  Green By Gretchen Schuldt Fewer than 30 years had passed since the end of the Civil War when Canadian-born William T. Green graduated from the University of Wisconsin Law School in 1892, one of the first Black people to do so. He was by then 31 or 32 years old. Law degree in hand, he settled in Milwaukee, where he became the city's first and only Black attorney. By that time, he already had authored the state's first civil rights bill. Green's enrollment in law school was fortuitous, according to a September 1893 Milwaukee Journal newspaper story. The short, one paragraph account announced a benefit for Green, "a colored lawyer of the city, who was stricken with paralysis some time ago." "Years ago he was an errand boy in Milwaukee, but later obtained a position about the state university building," the newspaper reported. "He was without money and although eager to learn was unable to provide himself with an education. One of the professors one day found him with his ear to the keyhole listening to a law lecture. Attracted by the lad's earnestness to learn the professor helped him through college and he graduated a year or two ago with high honors." Green, as a young man, watched as the country moved away from its commitment to civil rights. In 1883, the U.S. Supreme Court struck down a federal law prohibiting discrimination in public accommodations. The move had ramifications in Wisconsin. Black people were turned away from taverns and other public places; some attending a teachers' convention in Madison were not allowed to register at hotels, according to the summer 1966 issue of the Wisconsin Magazine of History.
The small Black population (304 people in 1880) began pushing for a state law that would do what federal law no longer did. Then in 1889, Owen Howell, a Black man, bought a ticket to a play. When he went to the Bijou Opera House in Milwaukee, he was denied his seat and an usher instead directed him to the gallery. Howell sued in Milwaukee County Circuit Court. Black leaders in the city, including Green, held a convention to show off their increasing political strength – the city's Black population was by then about 449 – and to push for a new civil rights league, which was indeed established. Green also helped organize a meeting to censure the Bijou's owner. The meeting drew about 75 people – about 17% of the city's Black population. Howell won his case and was awarded $100 and costs. Law student Green, meanwhile, was busy with his civil rights bill. It was drafted in late 1889, and introduced in January 1891 by a one-term legislator, Orren T. Williams. Republicans at the time were the advocates for civil rights. They also were in the legislative minority that term. The bill would have provided equal access to a variety of public accommodations, including restaurants, saloons, barber shops, theaters, and transportation conveyances. Violations would be punishable by fines of $25 to $500 and incarceration for up to one year. The debate in the Judiciary Committee was overtly racist. "Where is the man on this floor who will say the colored man is the equal of the white man?" Assemblyman John Winans asked. "God did not create them equal." First the bill was watered down. Then it was defeated. "Mr. Williams, who introduced it, wanted it killed because it had been limited to hotels and common carriers," The Milwaukee Journal reported.  By Margo Kirchner Chief Buffalo was instrumental in the transfer of approximately one-third of Wisconsin from Indigenous Americans to the United States while retaining his people’s rights to live on reserved land and to hunt, fish, and gather. Chief Buffalo (also known as Great Buffalo, Kechewaishke, Gitchi waisky, or Pezheke) negotiated and signed a series of land-cession treaties between the Lake Superior Anishinaabe (also known as the Chippewa or Ojibwe) and the United States between 1837 and 1854. By the mid-1800s, Chief Buffalo was chief of all Lake Superior Anishinaabe and their lead treaty negotiator. He is best known for ensuring that the Anishinaabe would stay on their lands, even if those lands were significantly reduced in size, rather than move west of the Mississippi River. His work shaped the map of Wisconsin today, as the treaties he signed passed most of northern Wisconsin into United States control and eventually to White landowners. Chief Buffalo pursued a peaceful resolution despite treachery by the U.S. government that left about 400 Anishinaabe dead. While one could argue that the Anishinaabe relinquished too much in the treaties, Rob Goslin, a tribal elder of the Red Cliff Band of Anishinaabe and a historical interpreter for the Madeline Island Museum, confirms Chief Buffalo’s favorable place in his people’s history. Goslin says that Chief Buffalo knew changes were occurring as traders and settlers moved into northern Wisconsin, and he saw the issue as how to live among the new settlers rather than how to fight their presence. Goslin points to a saying he uses as a tribal elder and historical interpreter, which sums up Chief Buffalo’s thinking: “Teaching stays the same but the culture we live in changes.” When changes occur, “we have to live as we are today,” he says, and that was Chief Buffalo’s position. Chief Buffalo did the best he could with the situation before him, says Goslin. “He did his very best to look in the interest of his people.”  "Portrait of Chief Buffalo," image 3957. Wisconsin Historical Society photo. Born in or about 1749 at La Pointe on Madeline Island (one of the Apostle Islands in southwestern Lake Superior), Chief Buffalo was a member of the Loon Clan, from which the highest-level chieftains of the Lake Superior Anishinaabe were chosen. Chief Buffalo rose to become what Goslin calls the “first chief” or “ultimate chief.” Several sources reference Chief Buffalo’s skill as a negotiator. An obituary of Chief Buffalo remarked that he was “noted for his rare integrity, wisdom in council, power as an orator, and magnanimity as a warrior.” Anishinaabe government was based on consensus, says Goslin, so Chief Buffalo had to discuss and mediate issues with the other clans’ chiefs as well as with the United States. The Minnesota chiefs in particular did not always agree with him. But in treaty negotiations, Chief Buffalo ultimately led the discussions. “He was a talker,” Goslin says. The Anishinaabe lived by hunting and trapping; fishing in Lake Superior, other lakes, and streams; gathering wild rice; and tapping maple trees for syrup. As European fur traders arrived in what is now northern Wisconsin, Michigan’s Upper Peninsula, and Minnesota, the Anishinaabe traded and intermarried with them. While other Anishinaabe tribal leaders urged physical aggression to resist the United States’ land acquisitions, Chief Buffalo relied on nonviolent negotiations and advocated for peace. Goslin says “that was one of the unique things about him—he was against bloodshed.” In the 1837 Treaty with the Chippewas, signed at St. Peters in Minnesota, and the 1842 Treaty with the Chippewas, signed at La Pointe, the Anishinaabe ceded land in eastern Minnesota, northern Wisconsin, and the western Upper Peninsula of Michigan. The portion of ceded land in Wisconsin alone totaled more than 22,000 square miles. In exchange, the Anishinaabe received certain sums to pay debts plus annual payments in cash and supplies for 20 (1837 treaty) and 25 (1842 treaty) years. The Anishinaabe retained their rights to hunt, fish, and gather on the ceded land, rivers, and lakes. Chief Buffalo participated in the 1837 and 1842 treaty negotiations and signed both treaties as chief of the La Pointe band of Anishinaabe. Historical reports indicate that the Anishinaabe believed they had sold only rights to timber and copper rather than the land itself, permanently. Ronald N. Satz, in Chippewa Treaty Rights: The Reserved Rights of Wisconsin’s Chippewa Indians in Historical Perspective, cites evidence that the acting superintendent of Indian affairs for the area assured the chiefs at the treaty council that they would not be asked to leave ceded lands for many years as long as they were peaceful and well-behaved. In a letter to the commissioner of Indian affairs in 1850, Chief Buffalo and other Anishinaabe chiefs recalled that during negotiations for the 1842 treaty, government officials said that the United States wanted the mineral rights to the land, not to settle it, and that the Anishinaabe would be able to live on their lands for 50 or even 100 years. They believed that although they had ceded their lands, they could remain living, hunting, and fishing there. United States officials thought otherwise. A new administration in the White House in 1845 brought a new commissioner of Indian affairs who wanted to move the Anishinaabe and others to a northern “Indian colony” to assist in westward expansion. As noted by Richard D. Cornell in The Chippewa: Biography of a Wisconsin Waterway, the commissioner also suggested evicting the Anishinaabe from northern Wisconsin to promote their “civilization.” The situation became dire in February 1850, when President Zachary Taylor revoked all hunting and fishing rights in the ceded territory and ordered the Anishinaabe to move from their lands around Lake Superior to west of the Mississippi River. Such removal would have taken the Anishinaabe away from their homelands and placed them in close proximity to the Dakota (also known as the Sioux), with whom the Anishinaabe had conflicted for more than a century. Chief Buffalo and other chiefs opposed to removal sent messengers to villages throughout their lands to confirm that the Anishinaabe had committed no incidents of aggression against White communities that could have justified removal. To push the Anishinaabe west, a Bureau of Indian Affairs agent and the territorial governor of Minnesota moved the location of the annual treaty payments of cash and supplies from La Pointe, Wisconsin, to Sandy Lake, Minnesota, and set the delivery for October 1850. The officials required all Anishinaabe families to appear to receive the payments, hoping to lure them to Minnesota and strand them there for the winter and possibly permanently. At least 3,000 Anishinaabe traveled hundreds of miles westward to Sandy Lake for the annuity payment. But when they arrived they found rancid and inadequate food, few supplies, and no cash payments. The Anishinaabe suffered six weeks of hunger and terrible conditions waiting for the annuity payments (which never arrived) before walking home, as winter had set in and rivers had frozen. About 170 Anishinaabe died at Sandy Lake from disease and starvation and another 230 died on the journey home.  "Chief Buffalo – Sandy Lake Tragedy," by Carl Gawboy. Photo courtesy of Madeline Island Museum. In November 1851 Chief Buffalo and several other Anishinaabe chiefs and headmen wrote to the commissioner of Indian affairs complaining of the acts of the Indian agent in Wisconsin as a “great deception towards us,” describing the suffering at Sandy Lake, asking that future annuity payments be made at La Pointe, and asking permission to send a delegation to Washington, D.C.
Receiving no response to the request, in spring 1852, at age 93, Chief Buffalo set out to negotiate in person with U.S. President Millard Fillmore. (Taylor died in July 1850.) The party had not received permission for the journey from Washington officials, which was legally required at the time. Chief Buffalo, another leader named Oshoga, and four other Anishinaabe chiefs or braves, accompanied by translator Benjamin Armstrong (a White man who had married into Chief Buffalo’s family), traveled from La Pointe across Lake Superior in birchbark canoes. Along the way, they stopped at settlements and obtained petitions of support from the White community. When the party reached Sault St. Marie, Michigan, government officials tried to block their travel, saying Indians were not allowed to pass that point without permission from Washington. However, Chief Buffalo and his delegation persuaded the officials to let them pass. They traveled by steamer to Detroit, where another government official tried to hold them up. Undeterred, the party traveled by steamer to Buffalo, then by train and steamer to New York City and Washington. Unsung hero: Lavinia Goodell, Wisconsin's first woman lawyer and an advocate for equal rights8/2/2021 By Colleen Ball Lavinia Goodell, Wisconsin’s first woman lawyer, is mostly known for her epic battle with Chief Justice Edward Ryan. In 1875, he denied her admission to practice before the Wisconsin Supreme Court solely because of her gender. According to Ryan: The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of law, are departures from the order of nature; and when voluntary, treason against it. Chief Justice Ryan crossed swords with the wrong woman. Goodell assailed his decision in the national press. She drafted a bill to prohibit gender discrimination in the practice of law, persuaded male legislators to pass it, and a male governor to sign it. Her triumph opened the Wisconsin bar to women, but her many other impressive feats are scarcely known.  Ryan and Goodell She was born to abolitionist parents who were so passionate about equal rights that their dishes were inscribed with the Declaration of Independence. Goodell later recalled: When I sat down to dinner every day I read my plate, till I had learned it all by heart—learned it so well I never forgot it. And thus literally with my child’s bowl of bread and milk I drank in also the question of equal rights . . . As a young woman, Goodell promoted equal rights by helping her father publish The Principia, an anti-slavery newspaper in New York. When he was away on business, she was the managing editor. After the North won the Civil War, she landed a job at Harper’s Bazar, America’s first fashion magazine, where she honed her skills as a writer and editor, rubbed shoulders with progressive New Yorkers, and came to regard herself as a professional woman, rather than a potential wife and mother. In 1871, her parents, then in their 70s, moved to Janesville, Wisconsin. Goodell followed to care for them. She was dismayed to find that, unlike her New York friends, Janesville women had “ballot phobia.” They refused to support the women’s suffrage movement for fear of appearing “unwomanly.” To her they seemed “content with their degradation.” Goodell would not stand idly by. While managing her parents’ health and home, she championed equal rights for women. She started writing for the Woman’s Journal, the leading suffragist periodical published by Lucy Stone and her husband, Henry Browne Blackwell. She published dozens of articles arguing that woman should have the right to vote, equality in marriage, the right to own property, the right to enter professions, and so on. She also decided to become an attorney. She studied law on her own while informally apprenticing for the firm of Pliny & Norcross and pushed to be admitted to the bar. In those days, bar exams were conducted orally in a courtroom by a judge and senior lawyers. Rock County Circuit Court Judge Harmon Conger knew that no woman had been admitted to the bar in Wisconsin. Lavinia’s admission would be controversial, so he kept postponing her exam until he no longer could. On June 17, 1874, Judge Conger had to examine a young man who wanted to practice law. Late in the day he “suddenly and unexpectedly” summoned Goodell to be examined at the same time. The questioning was “awful severe,” but Goodell not only passed, she upstaged the male candidate. Her admission as the first woman lawyer in Wisconsin created a sensation in Janesville and the national press. She immediately ordered business cards. 1n 1874, only a handful of women in the United States were lawyers. Several took the bar exam just to prove that they could pass it, but they did not practice law. Not Goodell. She used her law license to advance her causes in court and lobby for changes in the law. One of those causes was temperance, because drunk men abused, neglected, and impoverished their wives and children. Shortly after passing the bar, Goodell learned that Fort Atkinson saloon keepers were illegally selling liquor on Sundays and the male district attorney refused to prosecute them. Local temperance leaders thought the new lady lawyer might be up to the task. Indeed, she was. On August 4, 1874, Wisconsin’s first woman lawyer won her first two court trials back-to-back. The saloonkeepers immediately appealed to the Jefferson County Circuit Court where they would be tried by a jury of their peers--i.e., men. (Women couldn’t yet serve on juries). Big mistake. Goodell was smart and on a mission. She prepared long and hard. On September 17, 1874, she prevailed in her first jury trial. This marked the first time any woman tried a case to a jury in Wisconsin and even in the United States. Goodell proceeded to try many cases. Among the most noteworthy was Tyler v. Burrington, where she defended a middle-aged widow on a claim against her deceased husband’s estate. When the case reached the Wisconsin Supreme Court, Chief Justice Ryan issued his famously misogynous opinion (noted above) denying her admission to practice due to her gender, which only motivated her to lobby for a change in the law. Meanwhile, she kept litigating in the circuit courts. Women who had grounds for divorce couldn’t find male lawyers to represent them. Goodell took their cases. She also developed a knack for criminal defense work. While visiting a client in jail she felt another calling. The awful conditions were only breeding more vice. She established a school and prayer services in the Rock County Jail with the goal of rehabilitating inmates so that they could be productive members of society upon their release. She toured what is now Waupun Correctional Institution and proposed penal reform legislation to the Wisconsin legislature. Goodell smashed so many barriers. She became Wisconsin’s first female notary, which gave her and eventually other women a respectable source of income. She was the first woman in the United States to run for city attorney. She received 60 (male) votes. After she successfully lobbied the legislature and governor to allow women to practice law, she was finally admitted to practice before the Wisconsin Supreme Court. Then she became the first woman to win a case there. She also co-founded Wisconsin’s first female law firm—Goodell & King.  Along the way, Goodell circulated Elizabeth Cady Stanton’s suffrage petitions around Janesville, co-founded the Janesville women’s temperance association, served as vice president of the Society for the Advancement of Women, and vice president of the American Women’s Association. She was Wisconsin’s signatory to the 1878 Susan B. Anthony Amendment, which the U.S. Congress ultimately passed in 1920 as the 19th Amendment granting women the right to vote. The list goes on even though Goodell practiced law just six years and spent the last three of them battling ovarian cancer, which took her life at age 41. She did not smash barriers for the glory of it. She did it because she believed that women had as much right to social, civil, and political equality as anyone else. She shrewdly persuaded influential male lawyers, judges, and politicians to her point of view, which then opened doors for women. Yes, she blazed trails. Just as important, she inspired and actively helped others to venture onto them. Learn more about Lavinia Goodell by visiting www.laviniagoodell.com or taking this walking tour of her Janesville stomping grounds. Please help us identify people and events that deserve more recognition for their place in Wisconsin’s legal history. You can send as much information as you want, but at minimum we need: -The name of the person / identity or name of event -A picture, if available -A brief description of the person or event and the person or event’s impact on Wisconsin law or legal history -Where we can find out more about the person or event Please send the information to gretchen@wjiinc.org or mail it to WJI, P.O. Box 100705, Milwaukee, WI 53210 Thank you! This project is supported by:   Unsung legal heroes: Kathleen Rose Harney and Joan Kessler; assistance from Ruth Bader Ginsburg7/19/2021
By Gretchen Schuldt When Kathleen Rose Harney married Joseph Michael Kruzel in 1971, she kept using her own name. And there the trouble began. Her employer, Milwaukee Public Schools – Harney was a first-year art teacher – told her that she either had to use her husband's name or go to court and legally change her name to "Harney" if she wanted to add Joseph Kruzel to her health insurance policy. The marriage, after all, meant that her name was no longer hers, according to her employer. MPS was not alone in that belief. Harney's wedding announcement in The Milwaukee Journal referred to her as "Mrs. Joseph Michael Kruzel" and the "former Miss Kathleen Rose Harney."
Even Harney herself believed she gave up her name. "I didn't really want to," she said in an interview. "I thought you had to." Harney went to court. She appeared before Milwaukee County Circuit Judge Ralph J. Podell in December 1972 and asked the judge for permission to use the name that was hers since birth and that she had used on her marriage certificate. Technically, she asked to "change" her name from one she had never even used. "That's when things snowballed," said Harney, who now lives in Wauwatosa. She was called to the stand during the hearing she thought would be routine. "All they asked is, 'What's your name and are you pregnant?'" she said. Then the judge told her to sit down, she said, and the men in the room discussed what her name should be. The judge denied her request for the good of any future children she might have. Having parents with different names would be bad for the young ones, he said. If two people getting married can't agree on a single name, he said, "it would be better for them, any children they may have, and society in general that they do not enter into the marriage relationship." Podell also said that he "feels very strongly that family unity also requires that all members thereof bear the same legal name" and "this court feels she should carry her husband's name." Harney said her lawyer told the judge he rather agreed with him. The February 1973 ruling made the newspapers. "Maiden Name Plea Rejected By Court," the Journal reported. "My in-laws saw it in the paper," Harney said. "It didn't go over well." It took a while for her in-laws to speak to her again, she said. Attorney Priscilla Ruth MacDougall, who specialized in women's issues, found out about the ruling and contacted Harney. The naming precedent was bad and should not stand, MacDougall said. Would Harney consider an appeal? "We just got married and we're buying furniture," Harney, then 22, told her. "We can't afford an attorney." MacDougall said she and others would find the money. Harney appealed; the state Supreme Court accepted the case. Harney's appellate lawyer was a rookie attorney named Joan Kessler, who took the case pro bono. "I was just young and out of school and what did I know?" said Kessler, who would later serve as U.S. attorney for the Eastern District of Wisconsin and a state appeals court judge.  Attorney Joan Kessler, from a 1973 Milwaukee Journal story published about Harney's appeal. "Everyone was astounded" at Podell's decision," she said. It already was clear that a person's name was a matter of choice, she said. There simply was no law on the books requiring a woman to take her husband's name. Kessler drafted a brief for the state Supreme Court. Since she was headed to New York for an American Bar Association meeting, she thought she would seek help from a more experienced lawyer – ACLU attorney Ruth Bader Ginsburg, who filed an amicus brief in Harney's support.* Ginsburg invited Kessler to her apartment. "I got to meet Ruth," Kessler said. Ginsburg read the younger lawyer's brief "while I was sitting there," Kessler said. Kessler liked a William Shakespeare quote that Ginsburg used in her ACLU brief. With Ginsburg's permission, Kessler used it in her own as well: "[H]e that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed." "Why, as a condition of marriage," Kessler asked in her brief, "should this state compel one party to the marriage to exact from the other party so dear a price as one's own name? No rational answer suggests itself." Podell's lawyer, Bruce O'Neil, argued that Podell did not abuse his discretion in refusing to allow Harney to use her own name. He told the court that Podell's decision was "neither sexist nor chauvinist," the Journal reported. "It is submitted that whatever doubt may have existed in the trial court's mind vanished, when the appellant and her husband informed the court that, if they had children, they would give them surnames composed of a hyphenation of their two surnames," he said in his brief. "The trial court may well have asked what surnames they anticipated their grandchildren would bear, if one of their hyphenated children married the hyphenated child of two other parents bearing different legal surnames. And if they lived to see their great-grandchildren, they might well encounter a child listing under the burden of a hyphenated surname made up of eight different surnames." The court rejected O'Neil's arguments. Podell's points "could well be valid under proper circumstances, but only if proof were adduced to support the conclusions," Justice Nathan Heffernan wrote for the majority. "The reasons given for the denial of the change of name are completely conclusory and without any evidence of their applicability to the situation before the court....Unsupported generalizations do not constitute a cause shown to deny a change of name." The court also made a broader, more significant finding: "We conclude...that the common law in Wisconsin has never ossified to the point of a holding that a wife is required to take her husband's name. The implicit assumption is to the contrary." *The National Organization for Women joined with the ACLU to submit the brief. Also submitting an amicus brief on Harney's behalf were the University of Wisconsin Women Law Students' Association and the Olympia Brown League. Please help us identify people and events that deserve more recognition for their place in Wisconsin’s legal history. You can send as much information as you want, but at minimum we need: -The name of the person / identity or name of event -A picture, if available -A brief description of the person or event and the person or event’s impact on Wisconsin law or legal history -Where we can find out more about the person or event Please send the information to gretchen@wjiinc.org or mail it to WJI, P.O. Box 100705, Milwaukee, WI 53210 Thank you!   The Unsung Heroes in Wisconsin Legal History is supported by grants from the Milwaukee Bar Association Foundation and the Wisconsin Law Foundation.
 Gillespie By Gretchen Schuldt (Updated 6/7/21 to correct Booth's biography.) Ezekiel Gillespie, born a slave, grew up to win the right to vote for Wisconsin's Black men. (All women would have to wait a while.) Gillespie may be one of the better-known unsung heroes in Wisconsin's legal history – he at least has a pocket park named after him – but his story seems especially timely now, as the Legislature works diligently to increase restrictions on who can vote and when. Gillespie was born a slave in Georgia. His mother also was enslaved and his father reportedly was their owner. Reports about how Gillespie got his freedom are contradictory, but he may have bought his freedom from his own father. State voters were asked in an 1849 constitutional referendum whether the voting franchise should be extended to African American men. There were numerous political offices up for a vote at the same time. The franchise referendum passed, 5,265 to 4,075, but a lot of voters who went to the polls didn't vote on the referendum question at all – they were more interested in other items on the ballot. Because the referendum did not receive a majority of all the votes cast that day, officials said, it failed. That is how the matter stayed until 1865, when Gillespie tried to register to vote in Milwaukee. Unsurprisingly, election officials turned him away, as did election officials when he showed up at the polls to vote. Gillespie sued the Milwaukee board of election inspectors. In anticipation of the suit, Gillespie already was working with Sherman Booth, an abolitionist and newspaper editor. Gillespie was represented by Byron Paine, a premier civil rights attorney of the time and a former (and future) State Supreme Court justice, who may have had his fees covered by Booth. Gillespie lost in Milwaukee County Circuit Court and appealed to the Supreme Court. D.G. Hooker, representing the election inspectors, argued that the constitution required that the suffrage measure, to be adopted, had to be approved by a majority of voters in the election, not just a majority voting on the referendum. "It is not reasonable to presume...that the convention intended to permit a change in the provisions of the constitution on so important a subject as the right of suffrage, and one which the convention knew would at that time have been particularly odious to a large majority of the people, without requiring that it should be approved, either by an actual majority of all the members of the legislature, or by an actual majority of the voters themselves," he argued. But the court disagreed. "Under the provisions of our constitution, as well as of other constitutions, persons are elected to a particular office who have a majority of the votes cast – not for the candidates for some other office, but for the candidates for that office...." Justice Jason Downer wrote for the three-member court. "To declare a measure or law adopted or defeated – not by the number of votes cast directly for or against it, but by the number cast for and against some other measure, or for the candidates for some office or offices not connected with the measure itself, would not only be out of the ordinary course of legislation, but, so far as we know, a thing unknown in the history of constitutional law." Please help us identify people and events that deserve more recognition for their place in Wisconsin’s legal history. You can send as much information as you want, but at minimum we need:
-The name of the person / identity or name of event -A picture, if available -A brief description of the person or event and the person or event’s impact on Wisconsin law or legal history -Where we can find out more about the person or event We are closing this phase of the project on Nov. 15. Please send the information to gretchen@wjiinc.org or mail it to WJI, P.O. Box 100705, Milwaukee, WI 53210 Thank you! By Margo Kirchner and Gretchen Schuldt WJI is launching a project to fill some of the holes of Wisconsin legal history. We're looking for the people and events that played significant but largely overlooked roles in the state's legal development. There are likely many holes that can be filled; we just don’t know about them yet because the people and events have been deleted or relegated to the background for decades or longer. Their stories need to be told so we have a more comprehensive view of Wisconsin legal history. This project was inspired by the absence of diversity in the four murals, completed in 1915, that hang in the State Supreme Court. They depict historic events and that's all well and good, but the only mural that includes people of color depicts a murder trial where the defendant is a Native American and the person being celebrated is a White male judge, one with a somewhat cloudy historical reputation.  That particular mural, the only one that is actually about Wisconsin, represents territorial law by depicting the trial of Menominee Chief Oshkosh before federal judge James Doty in 1830. This mural shows Chief Oshkosh, other Menominees, and likely some Metis men (descendants of White French-Canadian men and Native American women) who were included in the jury. Chief Oshkosh and two other Menominees were tried for murder of a Pawnee who had accidentally killed a member of Oshkosh’s tribe. Under Menominee law, such a killing in retribution was permitted. According to the Wisconsin State Capitol Tour Narration guide, “[a]lthough the jury found Oshkosh guilty of murder, Doty ruled territorial law couldn’t be applied to this case because Oshkosh proved he had followed his legal system, tribal custom of law.” Nevertheless the actual decision was based at least in part on prejudice. "Knowing, as we do, that these laws were not enacted for the Indian, it appears to me that it would be tyrannical and unjust to declare him, by implication, a malicious offender against rules which the same laws presume he could not have previously known," Doty wrote. "He is not considered, in regard either to the general scope of government or of the laws, as an intelligent conscious being." Source: "James Duane Doty: Frontier Promoter," by Alice Elizabeth Smith. The other murals celebrate events that occurred in different times and places. ***  The mural most prominent to someone sitting in the Supreme Court gallery depicts the signing of the U.S. Constitution in Philadelphia in 1787. All persons depicted in the painting (and likely at the event itself) are White men. ***  This mural represents Roman law, showing Caesar Augustus Octavius presiding over the trial of a soldier; the scene depicts all White men. ***  The final mural depicts the signing of the Magna Carta in 1215 by King John of England, surrounded by soldiers and noblemen, all of whom are White men or boys. There are a lot of people and historic events not recognized in the Supreme Court art. The murals are definitely a product of their time.
But it's a different time now. We want to hear about the great variety of people and events that shaped Wisconsin legal history. The people don’t have to be lawyers, but they must have played a significant role in advancing the cause of justice in Wisconsin. A plaintiff in a civil rights lawsuit could qualify, for example, or a defender of consumer rights, or someone who broke down a legal barrier so others could succeed. We also are looking for the significant events that brought about positive change in Wisconsin law or in Wisconsin’s legal system, whether those events occurred in or outside of a courtroom. White people, Black people, Brown people, men, women, children. Protests, court decisions, orations – let's hear about them! We will publish information about these folks and events on our blog; funding willing, WJI eventually will transform the information into a book and make it available to the public. We also have various events in mind to celebrate these unsung characters and occasions. Please help us identify people and events that deserve more recognition for their place in Wisconsin’s legal history. You can send as much information as you want, but at minimum we need: -The name of the person / identity or name of event -A picture, if available -A brief description of the person or event and the person or event’s impact on Wisconsin law or legal history -Where we can find out more about the person or event We are closing this phase of the project on Nov. 15. Please send the information to gretchen@wjiinc.org or mail it to WJI, P.O. Box 100705, Milwaukee, WI 53210 |
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