Western Legal History
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WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY VOLUME 4, NUMBER 1 WINTER/SPRING 1991 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. Westem 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 by the 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 CIRCUIT HISTORICAL SOCIETY BOARD OF DIRECTORS HON JAMES R. BROWNING ELDWARDJ. McANIFF; ESQ, Chairman Los Angeles San Francisco MICHAELE. McNICH(OLS, ESQ JEROME I BRAUN, ESQ LewisIton P'resident 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. KENNETH M NOVACK, ESQ. Sacramento SecretaryTreasurer CHARLES B RENFREW, ESQ. Portland San Francisco 1. DAVID ANDREWS, ESQ. HON. PAUL G. ROSENBLATT Seattle Phoenix HON. ORVILLE A ARMSTRONG FRANK ROTHMAN, ESQ. Los Angeles Los Angeles LEROY I. BARKER, ESQ. HON. HAROLD L. RYAN Anchorage Boise THOMAS D. BEATTY, ESQ. JOHN L. SCHWABE, ESQ, Las Vegas Portland HON. JAMES M. BURNS GARVIN F. SHALLENBERGER, ESQ. Portland Costa Mesa CHRISTINE SWENT BYRD, ESQ DONALD C. SMALTZ, ESQ Los Angeles Los Angeles BARBARA A. CAULFIELD, ESQ. GERALD K. SMITH, ESQ. San Francisco Phoenix GEORGE W. COOMBE, JR., ESQ HON. JOSEPH T. SNEED San Francisco San Francisco GEORGE C DALTHORP, ESQ. CHRISTINA A. SNYDER, ESQ. Billings Los Angeles C F. DAMON, IR., ESQ. WILLIAM W, VAUGHN ESQ. Honolulu Los Angeles JEROME B FALK, JR., ESQ. VICTOR A. VILAPLANA, ESQ. San Francisco San Diego MURRAY M. FIELDS, ESQ. CHARLES S. VOGEL, ESQ. Los Angeles Los Angeles ERNESTGELLHORN, ESQ. ROBERTS WARREN, ESQ. Los Angeles Los Angeles MAX L. GILLAM, ESQ, Los Angeles HON. ALFRED T, GOODWIN BOARD MEMBERS EMERITI Pasadena HON. WILLIAM P, GRAY JOSEPH A. BALL, ESQ. Pasadena Long Beach FULTON HAIGHT ESQ. HON. RICHARD H. CHAMBERS Santa Monica Tucson SHIRLEY M. HUESTEDLER, 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, Burtingamne Missoula ELWOOD S KENDRICK, ESQ. LEONARD S. JANOFSKY, ESQ, Los Angeles Los Angeles HON. SAMUEL RKING HON. JOHN F. KILKENNY Honoluln Portland JAMES P. KLEINBERG, ESQ. MARCUS MATTSON, ESQ. San Jose Los Angeles THEODORE A KOLB, ESQ. JOHN N. RUPP, ESQ, Sain Francisco Seattle FREDERICK K. KUNZEL, ESQ. SHARP WHITMORE, ESQ San Diego San Diego ROBERTH L NTZ, ESQ. Los Angeles ALBERT1 , MALANCA, ESQ. CHETORLOFF Tacomia Director WESTERN LEGAL HISTORY CHET ORLOFF, Editor PHILIPPA BRUNSMAN, Assistant Editor EVELYN K. BRANDT, Indexer 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, CaliforniaLawyer 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 CONTENTS Early Maritime Cases in the Ninth Circuit By Joseph M. Kadans 1 The Frontier Sheriff's Role in Law and Order By Larry D. Ball 13_ Judge Alfred T. Goodwin: An Oral History 27 The 1811 San Diego Trial of the Mission Indian Nazario By Doyce B. Nunis, fr. 47 South Asians, Civil Rights, and the Pacific Northwest: The 1907 Bellingham Anti- Indian Riot and Subsequent Citizenship and Deportation Struggles By John R. Wunder 59_ Historical Antecedents to the Boldt Decision By Kent D. Richards 69 Backfire from Boldt: The Judicial Transformation of Coast Salish Proprietary Fisheries into a Commons By Russel L. Barsh 85 John A. Carver: A Reminiscence By John A. Carver, fr. 03 Book Reviews 13 Articles of Related Interest Memberships and Contributions 29 Cover Photograph:Columbia River Indian dip netting in pools at Wishram, 1909 (Oregon Historical Society) The French ship Alice was wrecked twelve miles north of the Columbia River, off southwest Washington, in November 1909. (Oregon Historical Society) EARLY MARITIME CASES IN THE NINTH CIRCUIT By JOSEPH M. KADANS The distinctive nature of the law of the sea and congressional solicitude for maritime litigants has resulted in unique judicial treatment of admiralty cases in the federal courts. When the Judiciary Act of 1789 established the district and circuit courts, the district courts had general jurisdiction over admiralty cases, among others. The circuit courts had jurisdiction over cases of common law and equity and the more important criminal cases, and also had appellate jurisdiction over admiralty cases, as well as most others subject to district court authority. A district court judge was appointed for each district, and each such judge could sit either as a district judge or a circuit judge. Such a judge could not, on appeal, sit on a case in which he had been the trial judge. To provide for situations in which the circuit judge tried a case and an appeal was desired, the districts were grouped into larger units called circuits. Nine circuits were established so that each of the nine Supreme Court justices could be assigned to serve as an appellate court when the circuit judge had tried the case and was thus ineligible to serve as an appellate judge. It was not unusual for a justice of the Supreme Court to sit with a panel of two other judges to decide a case. All admiralty appeals in circuit court were heard de novo, with the appeal taking up questions for review both of fact and of law. The evidence taken by the district judge during the trial was the evidence used in an appeal when no record was made of the testimony. As appeals were regarded as trials de novo, new evidence could be introduced in the appellate court. A party could further appeal an adverse decision to the Supreme Court in cases where the amount in question was over $2,000. Here again, the second appeal was on both the law and the facts. Joseph M. Kadans formerly taught admiralty law in Maryland and now practices law in Nevada.