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Western Legal History WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY VOLUME 14, NUMBER 1 2001 Western Legal History is published semiannually, in spring and fall, by the Ninth Judicial Circuit Historical Society, 125 S. Grand Avenue, Pasadena, California 91105, (626) 795-0266/fax (626) 583-7018. The journal explores, analyzes, and presents the history of law, the legal profession, and the courts- particularly the federal courts-in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. Western Legal History is sent to members of the NJCHS as well as members of affiliated legal historical societies in the Ninth Circuit. Membership is open to all. Membership dues (individuals and institutions): Patron, $1,000 or more; Steward, $750-$999; Sponsor, $500-$749; Grantor, $250-$499; Sustaining, $100- $249; Advocate, $50-$99; Subscribing (nonmembers of the bench and bar, lawyers in practice fewer than five years, libraries, and academic institutions), $25-$49; Membership dues (law firms and corporations): Founder, $3,000 or more; Patron, $1,000-$2,999; Steward, $750-$999; Sponsor, $500-$749; Grantor, $250-$499. For information regarding membership, back issues of Western Legal History, and other society publications and programs, please write or telephone the editor. POSTMASTER: Please send change of address to: Editor Western Legal History 125 S. Grand Avenue Pasadena, California 91105 Western Legal History disclaims responsibility for statements made by authors and for accuracy of endnotes. Copyright ri2001, Ninth Judicial Circuit Historical Society ISSN 0896-2189 The Editorial Board welcomes unsolicited manuscripts, books for review, and recommendations for the journal. Manuscripts (three copies, and one disk in Microsoft Word for Windows, if possible) should be sent to the Editor, Western Legal History, 125 S. Grand Avenue, Pasadena, California 91105. Texts, including quotations and endnotes, must be double spaced. Notes must be numbered consecutively and appear in a separate section at the end of the text. Authors are requested to follow the style for citations used in this journal. Manuscripts that are no more than thirty pages in length, not counting notes, charts and tables, and photographs, are preferred. Also preferred are manuscripts not concurrently under consideration by another journal. Whether because of prejudice or custom, writers in earlier times often used language considered strange or offensive today. Because Western Legal History publishes articles that present the historical record as accurately as possible, it occasionally publishes quotations containing such language. The publication of such is not to be construed as representing the attitudes of either the authors or Western Legal History. Communication with the editor is encouraged before submission of any manuscript. At that time, other guidelines for the preparation and publication of an article may be discussed. Consultation about punctuation, grammar, style, and the like is made with the author, although the editor and the Editorial Board are the final arbiters of the article's acceptance and appearance. Articles published in this journal are abstracted and indexed in America: History and Life; Historical Abstracts; the Index to Legal Periodicals;and the Legal Resources Index. NuTrH JuDiCIA CIRcurr HISTORICAL SOCIETY BOARD OF DIRECTORS HON, JAMES R. BROWNING LAURIE L. LEVENSON, ESQ. Chairman Los Angeles San Francisco SHERMAN V. LOHN, ESQ. CHRISTINE W.S. BYRD, ESQ, Missoula President HON. EUGENE LYNCH Los Angeles Ross FORREST A. PLANT, ESQ. HON. M. MARGARET MCKEOWN Vice President Seattle Sacramento MICHAEL E. MCNICHOLS, ESQ. GERSHAM GOLDSTEIN, ESQ. Lewiston Treasurer HON. MARGARET M. MORROW Portland Los Angeles CHET ORLOFF HON. THOMAS G. NELSON Secretary Boise Portland RONALD L. OLSON, ESQ. JAMES P. KLEINBERG, ESQ. Los Angeles Immediate Past President HON. DIARMIUD F. O'SCANNLAIN Palo Alto Portland SETH ARONSON, ESQ. ION. MANUEL L. REAL Los Angeles Los Angeles LEROY J. BARKER, ESQ. LION. PAUL G. ROSENBLATT Anchorage Phoenix JEROME I. BRAUN, ESQ. HARRY H. SCHNEIDER, JR., ESQ. San Francisco Seattle JOHN FRANCIS CARROLL, ESQ. HON. MARY M. SCHROEDER San Pedro Phoenix CEDRIC C. CHAO, ESQ. MARC K. SELLERS, ESQ. San Francisco Portland RICHARD R. CLIFTON, ESQ. MARC M. SELTZER, ESQ. Honolulu Los Angeles GEORGE C. DALTHORP, ESQ. GERALD K. SMITH, ESQ. Billings Phoenix KATRINA M. DEWEY, ESQ. HON. CHRISTINA ANN SNYDER Los Angeles Los Angeles GARETH T. EVANS, ESQ. HAROLD B. THOMPSON, ESQ. Los Angeles Reno HON. DAVID EZRA WILLIAM E. TRAUTMAN, ESQ. Honolulu San Francisco JEFFREY M. FISHER, ESQ. D. BURR UDALL, ESQ. San Francisco Tueson PARKER C. FOLSE Ill, ESQ. ROBERTS. WARREN, ESQ. Seattle Los Angeles HON. LLOYD D. GEORGE MICHAEL A. WHITE, ESQ, Las Vegas Saipan HON. ALFRED T. GOODWIN Pasadena BOARD MEMBERS EMERITI HON. RONALD M. GOULD HON. JAMES M. BURNS Seattle Portland HON. PROCTER HUG, JR. SHIRLEY M. HUFSTEDLER, ESQ. Reno Los Angeles HON. SUSAN Y. ILLSTON ELWOOD S. KENDRICK, ESQ. San Francisco Los Angeles CURTIS A. JENNINGS, ESQ. HON. SAMUEL P. KING Phoenix Honolulu MICHAEL A. KAHN, ESQ. HON. JOSEPH T. SNEED San Francisco San Francisco FREDERICK K. KUNZEL, ESQ. SHARP WHITMORE, ESQ. San Diego Fallbrook WESTERN LEGAL HISTORY BRADLEY B. WILLIAMS, EDITOR JUDITH FORMAN, PRODUCTION EDITOR EDITORIAL BOARD JUDITH AUSTIN DAVID J. LANGUM Idaho State Historical Society Cumberland School of Law, GORDON MORRIS BAKKEN Samford University California State University, MARI MATSUDA Fullerton Law School Center, MICHAL BELKNAP Georgetown University California Western R. JAMES MOONEY School of Law University of Oregon HON. JAMES R. BROWNING Law School Circuit Judge, U.S. Court of CLAUS-M. NASKE Appeals for the Ninth Circuit University of Alaska, ELIZABETH J. CABRASER, ESQ. Fairbanks San Francisco KENNETH O'REILLY ERIC A. CHIAPPINELLI University of Alaska, School of Law, Anchorage Seattle University PAULA PETRIK LAWRENCE M. FRIEDMAN University of Maine Stanford Law School PETER L. REICH CHRISTIAN G. FRITZ Whittier Law School University of New Mexico JOHN PHILLIP REID School of Law New York University DALE GOBLE School of Law University of Idaho HARRY N. SCHEIBER, PH.D. HON. ALFRED T. GOODWIN Boalt Hall, Senior Circuit Judge, University of California U.S. Court of Appeals MOLLY SELVIN, PH.D. for the Ninth Circuit Santa Monica PAUL BRYAN GRAY CAROLINE STOEL Claremont Portland State University MICHAEL GRIFFITH STEPHEN L. WASBY Archivist, U.S. District Court, State University of New York, Northern District of California Albany ARTHUR D. HELLMAN JOHN R. WUNDER University of Pittsburgh University of Nebraska JAMES W. HULSE University of Nevada, Reno WESTERN LEGAL HISTORY VOLUME 14, NUMBER 1 WINTER/SPRING 2001 CONTENTS Romancing the West Hon. M. MargaretMcKeown, Guest Editor 1 Judging Western History: From the Battlefield to the Courtroom PatriciaN. Limerick 9 The Northwest Indian Fishing Decisions: Luminous Events in Ninth Circuit History Charles Wilkinson 17 How Immigration and the Ninth Circuit Grew the West: A Historical Perspective David C. Frederick 2 How Immigration and the Ninth Circuit Grew the West: A Contemporary Perspective Doris Meissner Balance and Conflict: Environmental Challenges Facing the Western United States Panel Discussion Hon. Raymond C. Fisher, Presiding 43 V1i WESTFRN LEGAL His roizy VOL. IL. No. I vi WESTERN LEGAL HISTORY VOL. 14.. No. I Articles of Related Interest 73 Memberships, Contributions, & Grants 77 Cover Photograph:Big Sky, Montana, was the site of the 2001 Ninth Circuit Judicial Conference. (Courtesy of Big Sky Resort) ROMANCING THE WEST HONORABLE M. MARGARET MCKEOWN "What's past is prologue." -William Shakespeare Shakespeare'soft-quoted perspective of history- his shrewd observation in The Tempest that we should learn about history to understand and appreciate the present and forecast the future-regularly generates paraphrases by historians and philosophers, perhaps most famously by George Santayana, who decreed that "those who cannot remember the past are condemned to repeat it."' Unfortunately, this admoni- tion only irregularly stirs us to recognize why some forces remain constant and others change as a result of historical development. With this perspective in mind, and as the Ninth Circuit enters its second century of existence, the executive committee of the Ninth Circuit Judicial Conference chose to focus our 2001 gathering in Big Sky, Montana, on how history has shaped the circuit-in terms of its legal landscape, its physical environment, and its population. The Honorable M. Margaret McKeown is a judge on the United States Court of Appeals for the Ninth Circuit. She served as the chair of the 2001 Ninth Circuit Judicial Confer- ence. Judge McKeown extends special thanks to the Honorable Michael Hogan (District of Oregon), who chaired the program committee of the conference; Renee Lorda, assistant circuit executive, who coordinated the conference; and her 2001-2002 law clerks for their assistance in editing this volume: Maia Goodell, Ellis Johnston, David Schlesinger, and Nirej Sekhon. George Santayana, The Life of Reason, Introduction and Reason in Common Sense (New York, 1905), 284. 2 WESTERN LFc.AL HISTORY Vot. 14 WNo. 1 We began the conference with a dramatic presentation by Meriwether Lewis,2 whose expedition with William Clark was pivotal in the westward expansion. An overview of the expan- sion would be incomplete without reference to Native Ameri- cans. Rennard
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