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WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY VOLUME 24, NUMBER I 2011 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) 229-7476. The journal explores, analyzes, and presents the history of law, the legal profession, and the courts- particularly the federal courts-in Alaska, Arizona, California, Hawai'i, 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 @2011, 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; HistoricalAbstracts; the Index to Legal Periodicals;and the Legal Resources Index. NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY BOARD OF DIRECTORS JEFFREY M. FISHER, ESQ. ADVISORY COUNCIL Chair RITA M. HAEUSLER, ESQ. San Francisco Co-Chair GARETH T EVANS, ESQ. Los Angeles Treasurer LEROY J. BARKER, ESQ. Irvine Co-Chair PAUL T. FRIEDMAN, ESQ. Secretary Portland San Francisco J. BRUCE ALVERSON, ESQ. MARC M. SELTZER, ESQ. Las Vegas Immediate Past Chair HON. CHRISTINE W. BYRD Los Angeles Los Angeles SETH ARONSON, ESQ. A. MARISA CHUN, ESQ Los Angeles Washington, D.C. JEROME . BRAUN, ESQ, DANIEL P. COLLINS, ESQ. San Francisco Los Angeles JOHN CARSON, ESQ. HON. MORRISON C. ENGLAND, JR. Los Angeles Sacramento HON. DAVID 0. CARTER PARKER C. FOLSE IIL, ESQ. Santa Ana Seattle HON. RICHARD R. CLIFTON FREDERICK P. FURTH, ESQ. Healdsburg Honolulu WILLIAM . EDLUND, ESQ. HON. ALFRED T. GOODWIN San Francisco Pasadena HON. ROBERT H. FAIRBANK, ESQ. RONALD M. GOULD Los Angeles Seattle GREGORY S. FISHER, ESQ, M. FINBAR HILL Anchorage Hunrington Beach DONALD L. GAFFNEY, ESQ. SHIRLEY M. HUFSTEDLER, ESQ. Los Angeles Phoenix HON. GERSHAM GOLDSTEIN, ESQ. PROCTER HUG, JR. Portland Reno PETER E HABEIN, ESQ. HON. VICTOR B. KENTON Billings Los Angeles RITA M. HAEUSLER, ESQ, KENNETH N. KLEE, ESQ. Los Angeles Los Angeles HON. ROBERT J. JOHNSTON TIMOTHY M. LYNCH, ESQ. Las Vegas Anchorage ROBERT D. LOWRY, ESQ. HON. JAMES MAHAN Eugene Las Vegas THOMAS J. MCDERMOTT, JR., ESQ. SONIA R. MARTIN, ESQ. Palm Desert San Francisco HON. M. MARGARET MCKEOWN HOWARD G. MCPHERSON, ESQ. San Diego Honolulu HON. GERALDINE MUND RONALD L. OLSON, ESQ. Woodland Hills Los Angeles TERRY NAFISI HON. DIARMUID F, O'SCANNLAIN Los Angeles Portland JEFFREY R. PORTNOY, ESQ. HON. KAREN OVERSTREET Honolulu Seattle HON. MANUEL L. REAL PER A. RAMFJORD, ESQ. Los Angeles Portland HON. PAUL G. ROSENBLATT ARTHUR F ROECA, ESQ. Phoenix Honolulu HON. MARY M. SCHROEDER GERALD K. SMITH, ESQ. Phoenix Tucson HON. MILAN D, SMITH, JR, GAIL M1GDAL TITLE, ESQ. El Segundo Los Angeles HON. CHRISTINA ANN SNYDER ROBERT S. WARREN, ESQ. Los Angeles Los Angeles DEAN A, ZIEHL, ESQ. DOUGLAS R. YOUNG, ESQ. Los Angeles San Francisco MERYL YOUNG, ESQ. Irvine WESTERN LEGAL HiSTORY BRADLEY B. WILLIAMS, EDITOR JUDITH FORMAN, Cort/PRODUCTION EDITOR EDITORIAL BOARD JUDITH AUSTIN ARTHUR D. HELLMAN Boise University of Pittsburgh GORDON MORRIS BAKKEN School of Law California State University, DAVID J. LANGUM Fullerton Samford University MICHAL BELKNAP Cumberland School of Law California Western R. JAMES MOONEY School of Law University of Oregon ELIZABETH J. CABRASER, ESQ. Law School San Francisco CLAUS-M. NASKE LAWRENCE M. FRIEDMAN University of Alaska, Stanford Law School Fairbanks CHRISTIAN G. FRITZ PAULA PETRIK, PH.D. University of New Mexico George Mason University School of Law PETER L. REICH DALE GOBLE Whittier Law School University of Idaho JOHN PHILLIP REID School of Law New York University HON. ALFRED T. GOODWIN School of Law Senior Circuit Judge, HARRY N. SCHEBER, PH.D. U.S. Court of Appeals University of California for the Ninth Circuit Boalt Hall School of Law PAUL BRYAN GRAY, ESQ. MOLLY SELVIN, PH.D. Claremont Southwestern Law School MICHAEL GRIFFITH, PH.D. ROBERT S. WOLFE, ESQ. Oakland Santa Ana STEPHEN W. HAYCOX, PH.D. JOHN R. WUNDER, J.D., PH.D. University of Alaska, University of Nebraska Anchorage WESTERN LEGAL HISTORY VOLUME 24, NUMBER I WINTER/SPRING 2011 CONTENTS The Chinese "Are a Race That Cannot Be Believed": Jury Impaneling and Prejudice in Nineteenth-Century California Chiou-Ling Yeh I Political Negotiation and Jurisdiction of the Navajo Nation, Arizona, and Public Law 280 Kathryn L. Sweet The Color and Gender of Citizenship: Immigration Restriction in the Development of Oregon Jacki Hedlund Tyler 57 Book Reviews 93 Articles of Related Interest 99 Memberships, Contributions, & Grants 107 Cover photo: The political, legal, and economic relationships between the state of Arizona and the Navajo Nation are the subject of Kathryn Sweet's article in this issue. (Collection of the Ninth Judicial Circuit Historical Society) THE CHINESE "ARE A RACE THAT CANNOT BE BELIEVED": JURY IMPANELING AND PREJUDICE IN NINETEENTH-CENTURY CALIFORNIA* CHIoU-LING YEH On December 10, 1875, Ah Sue, alias Chin Mook Sow, was arrested and charged with murdering a fellow Chinese immigrant, Yee Ah Chin, in San Francisco. On March 27, 1876, in People v Chin Mook Sow, held in the Fifteenth District Court in San Francisco, Judge Samuel H. Dwinelle questioned George Snook, a prospective juror: "Have you any prejudice against [the Chinese] as a race?" Snook answered, "Yes, sir." Dwinelle then asked, "What is the character of that prejudice?" Snook responded, "Well, they are a race that cannot be believed."I Many of the prospective jurors expressed similar racial prejudice toward Chinese immigrants during voir dire, a process to select qualified jurors. Given the rare availability of impaneling transcripts, few scholars have been able to study the testimonies of prospective jurors closely. One legal historian, who examined over 2,500 *Idedicate this article to Clare (Bud) V. McKanna, Jr., who not only introduced me to the case but also taught me how to navigate legal history. Sadly, he did not live to see the article in print. An earlier version of this article was pre- sented at the meeting of the Association for Asian American Studies in 2'-010. My gratitude also goes to Suzanne Bordelon, Saindra Campbell, Haiming Liu, and Lisa Mar for their comments and suggestions, and to David Vidal for his research assistance. 'People v. Chin Mool Sow, file no. 447, in Applications for Pardon, Histori- cal Case Files, Prison Papers, Records of the Governor's Papers (Sacramento: California State Archives) (hereinafter People v. Chin Mook Sow, Governor's Papers), 153. Chiou-Ling Yeh is an associate professor in the Department of History at San Diego State University. Her current research focuses on anti-Americanism and the cultural Cold War. 2 WESTERN LEGAL HiSTORY VOL. 24,4 No.o I 2 WSENLGLHSOYVL homicide cases in five states in the American West, discovered that the Chin Mook Sow trial was the only murder case that included impaneling of the jury in the trial transcript. It is, indeed, an extraordinary case and a rare document in western legal history that provides insight into impaneling and the treatment of Chinese defendants. The landmark case of People v. Chin Mook Sow has received the attention of scholars seeking to demonstrate the negative effect of the anti-Chinese movement on Chinese defendants.' An article by John Wunder uses the case to discuss the court's decision regarding admitting Chinese immigrants' dying tes- timony., Elizabeth Dale examines this case more extensively in her book CriminalJustice in the United States, 1789-1939. According to Dale, the difficulty jurors had in comprehend- ing different Chinese dialects hindered the trial.