WESTERN LEGAL HisTORY THE JOURNAL OF THE NINTH JUDICIAL CIcurr HISTORICAL SocrETY VOLUME 5, NUMBER I WINTER/SPRING 1992 Western Legal History is published semi-annually, in spring and fall, by the Ninth Judicial Circuit Historical Society, 620 S.W. Main Street, Portland, Oregon 97205 (503) 326-3458. 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 Society 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 (non-members 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 620 S.W. Main Street Portland, Oregon 97205 Western Legal History disclaims responsibility for statements made by authors and for accuracy of footnotes. Copyright, @ 1992, Ninth Judicial Circuit Historical Society. ISSN 0896-2189. The Editorial Board welcomes unsolicited manuscripts, books for review, reports on research in progress, and recommendations for the journal. Manuscripts (two copies) should be sent to the Editor, Western Legal History, 620 S. W. Main Street, Portland, Oregon 97205. Texts, including quotations and footnotes, 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 upon 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 LEGAL RESOURCES INDEX, HISTORICAL ABSTRACTS, and AMERICA: HISTORY AND LIFE. NINTH JUDICIAL CIRcurr HISTORICAL SOCIETY BOARD OF DIRECTORS HON. JAMES R. BROWNING EDWARD J. McANIFF, ESQ. Chairman San Francisco San Francisco MICHAEL E. McNICHOLS, ESQ. JEROME . BRAUN, ESQ, Lewiston President MOLLY MUNGER, ESQ. San Francisco Los Angeles JOHN A. SUTRO, SR., ESQ. HON. ROBERT F. PECKHAM Vice President San Francisco San Francisco FORREST A. PLANT, ESQ. CHET ORLOFF Sacramento Secretary HON. MANUEL L. REAL, C. Portland Los Angeles GERSHAM GOLDSTEIN, ESQ. CHARLES B. RENFREW, ESQ. Treasurer San Francisco Portland HON. PAUL G. ROSENBLATT J. DAVID ANDREWS, ESQ Phoenix Seattle HON. HAROLD L. RYAN LEROY J. BARKER. ESQ. Boise Anchorage GARVIN F. SHALLENBERGER, ESQ. THOMAS D. BEATTY, ESQ. Costa Mesa Las Vegas DONALD C. SMALTZ, ESQ. HON. JAMES M. BURNS Los Angeles Portland GERALD K. SMITH, ESQ. CHRISTINE SWENT BYRD, ESQ. Phoenix Los Angeles HON. JOSEPH T. SNEED DAVID A. CATHCART, ESQ San Francisco Los Angeles CHRISTINA A. SNYDER, ESQ. HON. BARBARA A. CAULFIELD Los Angeles San Francisco WILLIAM E. TRAUTMAN, ESQ. GEORGE W. COOMBE, JR., ESQ. San Francisco San Francisco WILLIAM W. VAUGHN, ESQ. GEORGE C. DALTHORP, ESQ. Los Angeles Billings CHARLES S. VOGEL, ESQ. C. F. DAMON, JR., ESQ. Los Angeles Honolulu ROBERTS. WARREN, ESQ. F. BRUCE DODGE, ESQ. Los Angeles San Francisco JEROME B. FALK, JR., ESQ. San Francisco BOARD MEMBERS EMERITI MURRAY M. FIELDS, ESQ. Los Angeles HON, ALFRED T. GOODWIN JOSEPH A. BALL, ESQ. Pasadena Long Beach FULTON HAIGHT, ESQ. HON. RICHARD H. CHAMBERS Santa Monica Tucson SHIRLEY M. HUFSTEDLER, ESQ. ALLAN E. CHARLES, ESQ. Los Angeles San Francisco J. STERLING HUTCHESON, ESQ. MORRIS M. DOYLE, ESQ. San Diego San Francisco SUSAN Y. ILLSTON, ESQ. JAMES C. GARLINGTON, ESQ. Burlingame Missoula ELWOO) S. KENDRICK, ESQ. LEONARD S. JANOFSKY, ESQ. Los Angeles Los Angeles HON. SAMUEL P. KING HON. JOHN F. KILKENNY Honolulu Portland JAMES P. KLEINBERG, ESQ. MARCUS MATTSON, ESQ. San Jose Los Angeles FREDERICK K. KUNZEL, ESQ. SHARP WHITMORE, ESQ. San Diego San Diego THOMAS R. MALCOLM, ESQ. Irvine VILMA S. MARTINEZ, ESQ. CHETORLOFF Los Angeles Director WESTERN LEGAL HISTORY CHET ORLOFF, Editor PHILIPPA BRUNSMAN, Assistant Editor EDITORIAL BOARD REX ARMSTRONG, Esq. MARI J. MATSUDA Portland Richardson School of Law, JUDITH AUSTIN University of Hawaii Idaho State Historical Society R. JAMES MOONEY GORDON M. BAKKEN University of Oregon Law California State University, School Fullerton JAMES M. MURPHY, Esq. MICHAL R. BELKNAP Tucson California Western School of CLAUS-M. NASKE Law University of Alaska, Fairbanks HON. JAMES R. BROWNING PETER NYCUM Circuit Judge, U.S. Court of Northwestern School of Law, Appeals for the Ninth Circuit Lewis and Clark College ELIZABETH J. CABRASER, ESQ. KENNETH O'REILLY San Francisco University of Alaska, Anchorage ERIC A. CHIAPPINELLI PAULA PETRIK School of Law, University of University of Maine Puget Sound JOHN PHILLIP REID LAWRENCE M. FRIEDMAN New York University Stanford Law School School of Law CHRISTIAN G. FRITZ RAY REYNOLDS University of New Mexico Editor, California Lawyer School of Law HARRY N. SCHEIBER HON. ALFRED T. GOODWIN Boalt Hall, University of Chief Judge, U.S. Court of California Appeals for the Ninth Circuit MOLLY SELVIN, Ph.D. ROBERT W. GORDON Santa Monica Stanford Law School CHARLES H. SHELDON MICHAEL GRIFFITH Washington State University Archivist, U.S. District Court, CAROLINE P. STOEL Northern District of California Portland State University JAMES W. HULSE STEPHEN L. WASBY University of Nevada, Reno State University of New York, LOUISE LaMOTHE, Esq. Albany Los Angeles JOHN R. WUNDER DAVID J. LANGUM University of Nebraska Cumberland School of Law, Samford University CONTENT'S Lone Wolf v. Hitchcock: Implications for Federal Indian Law at the Start of the Twentieth Century By C. Blue Clark The Civil Law and Field's Civil Code in Common-Law California-A Note on What Might Have Been By Bartholomew Lee 13 Bearers of the Burden: Justices of the Peace, Their Courts and the Law, in Orange County, California, 1870-1907 By John J. Stanley 3f The White Man's Justice: Native Americans and the Judicial System of San Diego County, 1870-1890 By Richard W Crawford Phelps-Dodge and Organized Labor in Bisbee and Douglas By MarshalA. Oldman OO The 1990 Northern Justice Conference Proceedings By Stephen Haycox 7 Book Reviews 101 Articles of Related Interest 105 Memberships and Contributions 107 Cover Photograph: San Diego Courthouse, 1887 (San Diego Historical Society) WILLIAM P. GRAY 1912-1992 WflN JUDGE WILLIAM P. GRAY died recently, his loss was felt by the entire legal community-lawyers, jurists, and legal historians alike-for he was admired and respected by us all. For good reason. Judge Gray embodied the qualities that lawyers think judges should have. He was a person with principles, as well as patience; a person with convictions, as well as compassion; a person who believed in the law, as well as in fairness; a person who adminis- tered justice, but never lost his respect for human dignity. Just as his earlier years on the bench and in public service exemplified these qualities, so did his years as senior judge. For example, after he gained senior status, he gave up his courtroom to a junior judge, but he continued to take cases. He was a founding member of this Society and its first president, and his active support was critical to its early success. He became a counselor to high-school students in Pasadena. Even after he was diagnosed as having brain cancer, he began taking piano lessons. Throughout his life, he remained as interested, as interesting, and as thoughtful as ever. And he died as he as he had lived, with great dignity. Christine Swent Byrd, board member Ninth Judicial Circuit Historical Society Lone Wolf v. Hitchcock: IMPLICATIONS FOR FEDERAL INDIAN LAW AT THE START OF THE TWENTIETH CENTURY By C. BLUE CLARK anuary 5, 1903, has been called "one of the blackest days in the history of the American Indian."' The United States Supreme Court's decision announced on that day in Lone Wolf v. Hitchcock climaxed a century-long assault upon Native Americans that increasingly confined and restricted tribal members' rights to their cultural and legal separatism and to their lands.2 The opinion had implications not only for the Kiowa Indians who had gone to court to halt allot- ment in severalty of their reservation lands, but also for federal- Indian legal relations, for native treaty rights and sovereignty, and for official policy toward the American Indians. One recent jurist has termed the case "the Indians' Dred Scott decision."3 The terms of the 1867 Treaty of Medicine Lodge had begun allotting lands to individual Kiowa, Comanche, and Plains Apache Indians, although only limitedly at first.4 Tribespeople continued to hold unallotted lands in common.