Echo of Its Time: the History of the Federal District Court of Nebraska, 1867–1933 / John R
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Echo of Its Time ECHO OF ITS TIME The History of the Federal District Court of Nebraska, 1867– 1933 John R. Wunder and Mark R. Scherer University of Nebraska Press | Lincoln and London © 2019 by the Board of Regents of the University of Nebraska Portions of chapter 9 and 10 have been previously published by Omaha attorney Nick Batter in “The Wayfaring Judge: Woodrough and Organized Crime in the U.S. District Court,” Nebraska History 97, no. 2 (Summer 2016): 73– 92. The authors wish to thank Mr. Batter for his assistance and cooperation in the research and preparation of this material. All rights reserved Manufactured in the United States of America Publication of this volume was assisted by the Nebraska Branch of the Historical Society of the United States Courts in the Eighth Circuit. Library of Congress Cataloging- in- Publication Data Names: Wunder, John R., author. | Scherer, Mark R., author. Title: Echo of its time: the history of the Federal District Court of Nebraska, 1867– 1933 / John R. Wunder and Mark R. Scherer. Description: Lincoln: University of Nebraska Press, 2019. | Includes bibliographical references and index. Identifiers: lccn 2018041351 isbn 9781496212146 (hardback) isbn 9781496213112 (epub) isbn 9781496213129 (mobi) Subjects: lcsh: United States. District Court (Nebraska)— History— 19th century. | United States. District Court (Nebraska)— History— 20th century. | District courts— Nebraska— History— 19th century. | District courts— Nebraska— History— 20th century. | bisac: history / United States / State & Local / Midwest (ia, il, in, ks, mi, mn, mo, nd, ne, oh, sd, wi). | law / Legal History. | law / Courts. Classification: lcc kf8755.n35 w86 2019 | ddc 347.73/220978209034— dc23 lc record available at https://lccn.loc.gov/2018041351 Set in New Baskerville itc by E. Cuddy. Designed by N. Putens. Contents List of Illustrations vii Introduction ix 1. In the Beginning 1 2. The Dundy Years 29 3. Native Americans and Judge Dundy 49 4. Railroads and the Ermine of the Bench 63 5. The Politics of Transition 107 6. The “One Munger” Court 119 7. The Cattle Barons Cases 141 8. The “Two Munger” Court 173 9. The Early Munger- Woodrough Years 209 10. Prohibition and the Dennison Trial 241 Notes 271 Bibliography 315 Index 327 Illustrations Following page 172 1. Judge Elmer S. Dundy 2. Judge William D. McHugh 3. Judge William H. Munger 4. Omaha post office and federal building 5. Judges Munger and Van Devanter during the Dietrich trial and acquittal 6. Staged photo of masked farmers cutting the Brighton Ranch fence line, 1885 7. Omaha World- Herald cartoon, “Another Bad Egg” 8. Map showing fraudulent homestead patterns and Spade Ranch line 9. Map showing sequential “widow” homestead filings 10. Judge Thomas C. Munger 11. Omaha World- Herald cartoon, “A Tale of Woe and a Tale of Wealth” 12. Omaha World- Herald cartoon, “Sowing the Wind” 13. Omaha World- Herald cartoon, “Out of the Wet” 14. Omaha World- Herald headline and illustrations accompanying a feature story on Joseph Woodrough 15. Judge Joseph W. Woodrough 16. Martial law proclamation of Nebraska National Guard, January 28, 1922 17. Proclamation of Governor Samuel McKelvie establishing military courts, 1922 18. Federal prosecutor Edson Smith 19. Woodrough courtroom during Dennison trial Introduction In one of the more memorable passages from his classic Democracy in America, Alexis de Tocqueville noted, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”1 The point to be drawn from Tocqueville’s observation— the notion that a nation’s history is revealed in its courts of law— has been echoed and restated by many subsequent scholars and com- mentators. Perhaps most notably, renowned jurist Oliver Wendell Holmes Jr., writing some sixty years after Tocqueville, characterized the American judicial system as a “magic mirror” that reflects the ebb and flow of the nation’s social, political, and cultural history.2 That, in short, is the driving premise of this book. Throughout its 150 years of existence, the U.S. District Court of Nebraska has echoed the dynamics of its time, reflecting the concerns, interests, passions, and proclivities of the people who have made this place their home. The judges who have occupied the court’s bench have dealt with a vast and diverse range of issues, controversies, and debates, all of which have shaped and defined the state’s history and development— contests pitting laborers against management, homesteading farmers against free range cattlemen, progressive reformers against powerfully entrenched political and business interests, government regulators against free market capitalists, criminals against law enforcement ix officials, and Native Americans against the “mainstream” society that displaced them, to name just a few. At one time or another, and for better or worse, the aspirations of all of these groups and many more have made their way onto the docket of the Nebraska federal court. In their handling of those matters, the judges have indeed reflected the times in which they lived and worked. And in their stories, we are offered an instructive prism through which the state’s political, cultural, and social evolution may be traced, analyzed, and assessed. This project has been in the making for an inordinately long time, necessitating great patience and perseverance from all involved. The journey began more than seventeen years ago, when Dr. John R. Wun- der, professor of history at the University of Nebraska– Lincoln, was named the official historian for the Nebraska branch of the Histor- ical Society of the United States Courts in the Eighth Circuit, and he undertook the writing of a history of the court. Wunder made substantial progress on the research and drafting of the manuscript over the next several years, completing the first four chapters herein, before health issues and the press of other business began to slow the project’s momentum. At that point, Wunder invited the participation of his former student, Dr. Mark R. Scherer, professor of history at the University of Nebraska–Omaha. Scherer picked up the project from there, working intermittently over the past decade to research and draft the final six chapters. As the process unfolded, it was determined that a full account of the court’s history would ultimately require two volumes, with the first one, this book, tracing the court’s operations up to the year 1933. Through all the years of slow progress, the officers of the Nebraska branch of the Historical Society, most notably Jeanette Stull, Frank Mihulka, and John Sharp, have been steadfast—and remarkably toler- ant— in their stewardship of the project, offering valuable direction, feedback, and encouragement as the process unfolded. So too, the current chief judge of the U.S. District Court of Nebraska, Laurie Smith Camp, has lent her abundant support and her own considerable skills as a writer and historian to the effort. Deep thanks are also owed to a number of research assistants who have participated in the project, x | Introduction from John Hussman in the early years through Katie Welchans and Nick Batter more recently. Their time and skills have made a vital contribution to the ultimate result. But as valuable as all of those individuals’ participation has been, the sine qua non of this entire project has been Senior District Judge Richard Kopf, who has been its undisputed champion and indispensable guiding force from the outset. His sagacity, patience, serenity, and resolute determination to see the project to completion— often in the face of his own daunting medical challenges— have been an inspiration to everyone involved, and it is to him that this volume is dedicated. This book is not intended to represent a “standard” institutional history, nor does it come even remotely close to offering an exhaus- tive account of all, or even most, of the court’s significant decisions. For every case that is discussed, dozens more have been necessar- ily ignored. Our guiding principle has been to select and explore those stories from the court’s annals that we feel best serve the dual goals of informing and entertaining the reader, seeking to provide accessible narrative as well as the occasional “history lesson” on the larger contextual milieu in which the court’s actions are situated. It is, of course, for the reader to decide how well those goals have been accomplished. In chapter 1, John Wunder provides an overview of the origins and evolution of the federal judicial system generally, and analyzes the political maneuvering that led to Nebraska statehood and the creation of Nebraska’s new federal district court in 1867. Of particular note is Wunder’s exploration of the complicated and still confusing overlap between the role and duties of nineteenth-century federal judges in their capacity as both “district” and “circuit” judges. Chapter 2 describes the biographical background, early legal career, and 1867 appointment of the first permanent judge of the Nebraska district court, Elmer S. Dundy. This chapter also explores many of the notable cases heard and decisions rendered by Dundy during his extremely influential twenty- eight- year tenure as Nebraska’s first and only federal district judge and the often bitter partisan political environment in which he and the court operated. Introduction | xi Chapter 3 offers Wunder’s specialized examination of some of the most notable Indian law cases handled by Dundy, with particular attention to his landmark opinions in Standing Bear v. Crook (1879) and Elk v. Wilkins (1880). Finally, in chapter 4, Wunder provides detailed discussion and analysis of Dundy’s prominent and often controver- sial handling of numerous cases involving the railroads, which of course were among the most powerful corporate citizens of the state throughout the late nineteenth century. Scherer takes the reins beginning with chapter 5, offering a rela- tively brief examination of the short- lived and ultimately unconfirmed nomination of William McHugh after Dundy’s death in 1896.