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American-Style Justice in No Man's Land Peter Nicolas University of Washington School of Law

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American-Style Justice in No Man's Land Peter Nicolas University of Washington School of Law University of Washington School of Law UW Law Digital Commons Articles Faculty Publications 2002 American-Style Justice in No Man's Land Peter Nicolas University of Washington School of Law Follow this and additional works at: https://digitalcommons.law.uw.edu/faculty-articles Part of the Indian and Aboriginal Law Commons, and the Jurisdiction Commons Recommended Citation Peter Nicolas, American-Style Justice in No Man's Land, 36 Ga. L. Rev. 895 (2002), https://digitalcommons.law.uw.edu/faculty- articles/297 This Article is brought to you for free and open access by the Faculty Publications at UW Law Digital Commons. It has been accepted for inclusion in Articles by an authorized administrator of UW Law Digital Commons. For more information, please contact [email protected]. GEORGIA LAW REVIEW VOLUME 36 SUMMER 2002 NuMBER 4 ARTICLE AMERICAN-STYLE JUSTICE IN NO MAN'S LAND PeterNicolas* I. INTRODUCTION For much of the nineteenth century, the geographic region known today as the Oklahoma Panhandle and bounded on the east by the hundredth meridian of longitude, on the south by Texas, on the west by New Mexico, and on the north by Colorado and Kansas, was commonly referred to as the Public Land Strip, the Neutral Strip, or more ominously, "No Man's Land."1 The region was so-named * Assistant Professor, University of Washington School of Law. The author would like to thank Wendy Condiotty, Magdalena Cuprys, Ann Hemmens, Paul Holcomb, Nancy McMurrer, Cheryl Nyberg, Barbara Swatt, Lisa Wagenheim and the editors of the Georgia Law Review for their valuable research, feedback and assistance. 1 See Act of May 2, 1890, ch. 182, § 1, 26 Stat. 81, 81-82 (describing territory "commonly called No Man's Land"); Cook v. United States, 138 U.S. 157, 165 (1891) ("ITIhe Public Land Strip, ... commonly called No Man's Land .... is 167 miles in length, 34% miles in width, lies between the 100th meridian of longitude and the Territory of New Mexico, and is bounded on the south by that part of Texas known as the Panhandle, and by Kansas and Colorado on the north."); JEFFREY BURTON, INDIAN TERRITORY AND THEUNITED STATES, 1866-1906: COURTS, GOVERNMENT, AND THE MOVEMENT FOR OKLAHOMA STATEHOOD 4 (1995) CWest of the hundredth meridian is a neck of land containing 5,672 square miles now known as the 895 896 GEORGIA LAW REVIEW [Vol. 36:895 because, for much of the nineteenth century, it fell outside of the jurisdiction of any state or territorial, and, seemingly, any federal court.2 This unusual circumstance was the result of a geographic gap created by the federal statutes defining the boundaries of Texas, Colorado; New Mexico, Kansas, and Indian Territory. Given the evident lack of any court with jurisdiction over No Man's Land, it was perhaps inevitable4 that the region became the setting for a notorious murder, known as the Massacre of Wild Horse Lake.' On July 25, 1888, a group of Kansans associated with one faction of local Kansas politics, led by one Cyrus E. Cook, ambushed and murdered four other Kansans associated with a rival political faction inside the boundaries of No Man's Land.6 After the Oklahoma Panhandle and formerly called the Public Land Strip, Neutral Land Strip, or No Man's Land."). 2 See BURTON, supra note 1, at 4 (It was not part of Indian Territory and was not attached to any State or Territory until it was included in Oklahoma Territory under the provisions of the Organic act of May 2, 1890."); THE FEDERAL COURTS OFTHE TENTH CIRCUIT: AHISTORY 180 (James K. Logan, ed., 1992) ("The Oklahoma panhandle, Indian country west ofthe 100th meridian, remained beyond any federal or state jurisdiction, literally a No Man's Land, until 1889.") [hereinafter FEDERAL COURTS OF THE TENTH CIRCUIT]. See generally BURTON, supra note 1, at 160-61. 3 See Act of Jan. 6, 1883, ch. 13, § 2, 22 Stat. 400, 400 (providing "all that part of the Indian Territory lying north of the Canadian river and east of Texas and the one hundredth meridian not set apart and occupied by the Cherokee, Creek, and Seminole... shall... be annexed to and constitute a part of the United States judicial district of Kansas."); Act of Feb. 28, 1861, ch. 59, § 1, 12 Stat. 172, 172 (defining boundaries of Colorado territory); Act of May 30, 1854, ch. 59, § 19, 10 Stat. 277, 283 (defining southern boundary of Kansas); Act of Sept. 9, 1850, ch. 49, § 1, 9 Stat. 446, 446 (defining boundaries for State of Texas); id. § 2, 9 Stat. 446, 447 (defining eastern boundary of New Mexico territory as running from intersection of "the thirty-second degree of north latitude ... with the one hundred and third degree of longitude west of Greenwich; thence north with said degree of longitude to the parallel of thirty-eighth degree of north latitude .... "); Cook v. United States, 138 U.S. 157, 166 (1891) ("[A]t the date of the alleged homicide the Public Land Strip was not within the jurisdiction of any particular state or federal district, .... "). " The inevitability was not necessarily due to the inherent lawlessness of the people actually resident in No Man's Land, as most of the violent episodes resulted from the actions of outsiders. See Elmer E. Brown, No Man's Land-Note on Early Settlement, in 4 CHRONICLES OF OKLAHOMA, No. 2, 89, 98 (1926) ('In the years without legal restraint only three or four homicides occurred which were the result of differences between residents. The outstanding cases of homicide were due to differences between residents of the states temporarily in No-Man's-Land."); BURTON, supranote 1, at 160 ("But even this period, before No-Man's-Land was brought by statute into the Paris division of the Eastern District of Texas, knew only a few isolated cases of murder among those actually living in the Neutral Strip."). 5 FEDERAL COURTS OF THE TENTH CIRCUIT, supra note 2, at 181. 6 Id.; BURTON, supra note 1, at 160; GEORGE RAINEY, No MAN'S LAND: THE HISTORIC 20021 NO MAN'S LAND 897 incident occurred, the perpetrators made no secret of their act and indeed boasted of it, believing themselves to be immune from prosecution since the killing occurred in No Man's Land.7 The incident thus raised an interesting jurisdictional question: Can you literally get away with murder if you kill someone in No Man's Land? Throughout this country's history, as American trade and expansionism have taken Americans westward and around the globe, Congress has used its authority to create and define the jurisdiction of the federal courts to fill jurisdictional gaps in geographic enclaves where the alternative is no forum at all. In some instances, Congress has simply extended the territorial reach of an existing Article III federal district court. In the case of No Man's Land, for example, shortly after the Massacre of Wild Horse Lake, Congress vested the U.S. District Court for the Eastern District of Texas with judicial jurisdiction over the region,8 even though it fell outside the boundaries of the State of Texas.9 In other instances, Congress has created new, specialized federal courts having jurisdiction over disputes arising within a particular geographic region, as it has done for most of the U.S. territories." In addition to using the federal courts to serve this geographic gap-filling function, Congress has also used its authority over the courts to provide a federal forum where the existing fora, while theoretically available, were perceived by Congress as inadequate to protect the rights of particular parties either due to parochial bias or other actual or perceived deficiencies. In some such instances, Congress has vested existing Article III federal courts with jurisdic- tion over disputes involving particular parties, as in the case of STORY OFALANDED ORPHAN 198-204 (Enid, Oklahoma, privately published 1937). 7 RAINEY, supra note 6, at 204. a Act of Mar. 1,1889, ch. 333, § 17,25 Stat. 783,786. The following year, Congress made No Man's Land a part of the newly created Oklahoma Territory, thus placing it under the jurisdiction of the Oklahoma territorial courts. Act of May 2, 1890, ch. 182, § 1, 26 Stat. 81, 81-82. 9 See Act of Mar. 1, 1889, ch. 333, § 1, 25 Stat. 783, 783 (defining Indian Territory boundaries, thus describing it as including region known as No Man's Land). 10 See, e.g., 48 U.S.C. § 1821(a) (1994) CThere is established for and within the Northern Mariana Islands a court of record to be known as the District Court for the Northern Mariana Islands."). 898 GEORGIA LAW REVIEW [Vol. 36:895 diversity and alienage jurisdiction, where the risk of state court bias" prompted Congress to provide for federal court jurisdiction over most disputes between citizens of different states 12 and between a citizen of a state and a citizen of a foreign state." In other instances, Congress has created new, specialized federal courts to adjudicate disputes arising in foreign countries involving American citizens, such as the United States Court for China,'4 which was established to protect U.S. nationals from what was perceived to be "barbarous and cruel punishments inflicted" by the courts of non-Christian countries. 5 " See THE FEDERALIST NO. 80, at 495 (Alexander Hamilton) (Henry Cabot Lodge ed., 1888) C'[The peace of the WHOLE ought not to be left at the disposal of a PART."); id. at 497. [I]n order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens.
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