WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRcurr HISTORICAL SoCIETY VOLUME 5, NUMBER 2 SUMMER/FALL 1992 Western Legal History is published semi-annually, in spring and fall, by the Ninth Judicial Circuit Historical Society, 125 S. Grand Avenue, Pasadena, California 91105, (818) 405-7059. 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. 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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 America: History and Life; HistoricalAbstracts; the Index to Legal Periodicals;and the Legal Resources Index. NINTH JUDICIAL CIRCurr HISTORICAL SOCIETY BOARD OF DIRECTORS HON. JAMES R. BROWNING EDWARD 1. 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.J. 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 MURRAY M. FIELDS, ESQ. BOARD MEMBERS EMERITI Los Angeles HON. ALFRED T. GOODWIN JOSEPH A. BALL, ESQ. Pasadena Long Beach FULTON IAIGHT, 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 ELWOOD 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. BRADLEY B. WILLIAMS Los Angeles Director WESTERN LEGAL HISTORY BRADLEY B. WILLIAMS, Editor PHILIPPA BRUNSMAN, Assistant Editor EDITORIAL BOARD REX ARMSTRONG, ESQ. MARI J. MATSUDA Portland School of Law, University of JUDITH AUSTIN California, Los Angeles 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 CLAUSE-M. NASKE Law University of Alaska, HON. JAMES R. BROWNING Fairbanks Circuit Judge, U.S. Court of PETER NYCUM Appeals for the Ninth Circuit Northwestern School of Law, ELIZABETH J. CABRASER, ESQ. Lewis and Clark College San Francisco KENNETH O'REILLY ERIC A. CHIAPPINELLI University of Alaska, School of Law, University of Anchorage Puget Sound PAULA PETRIK LAWRENCE M. FRIEDMAN University of Maine Stanford Law School JOHN PHILLIP REID CHRISTIAN G. FRITZ New York University University of New Mexico School of Law School of Law RAY REYNOLDS HON. ALFRED T. GOODWIN Editor, CaliforniaLawyer Chief Judge, U.S. Court of HARRY N. SCHEIBER Appeals for the Ninth Circuit Boalt Hall, University of ROBERT W. GORDON California Stanford Law School MOLLY SELVIN, PH.D. MICHAEL GRIFFITH Santa Monica Archivist, U.S. District Court, CHARLES H. SHELDON Northern District of California Washington State University JAMES W. HULSE CAROLINE P. STOEL University of Nevada, Reno Portland State University LOUISE LaMOTHE, ESQ. STEPHEN L. WASBY Los Angeles State University of New York, DAVID J. LANGUM Albany Cumberland School of Law, JOHN R. WUNDER Samford University University of Nebraska WESTERN LEGAL HISTORY VOLUME 5, NUMBER 2 SUMMER/FALL 1992 CONTENTS Where Is The Man? The Search for a Juvenile Court in Montana By Robert A. Harvie 127 Voices of Federalism: Sylvester Pennoyer, Matthew P. Deady, and the Money Question in Oregon By Margaret K. Holden Joseph A. Ball: An Oral History 167 "A Worse Than Useless Custom": The Potlatch Law and Indian Resistance By Douglas Cole and Ira Chaikin The Judicial Business of a Nineteenth- Century Federal Trial Court: The Northern District of California, 1851-1891 By ChristianG. Fritz Book Reviews 253 Articles of Related Interest 261 Memberships and Contributions 265 Cover Photograph:Members of the Commission on the Assassination of President John F. Kennedy (left to right): Representative Gerald R. Ford, Representative Hale Boggs, Senator Richard B. Russell, Chair- man Earl Warren, Senator John Sherman Cooper, John J. McCloy, Allen W. Dulles, J. Lee Rankin (National Archives) Child savers in Montana hoped to prevent scenes like this one in Butte. The children in the foreground are playing in a slag pile from a smelter. (Museum of the Rockies, Montana State University) WHERE IS THE MAN? THE SEARCH FOR A JUVENILE COURT IN MONTANA By ROBERT A. HARVIE O n the evening of January 25, 1907, Denver's Judge Ben Lindsey, the evangelic leader of the Juvenile Court Movement, spoke to the Butte Teachers' Association. Intro- duced as America's most popular judge, he told his enthusiastic audience that "the child is not a criminal; he is only capable of doing evil when the opportunity is given him and his environ- ment is bad." He placed the burden of correcting the child directly on the shoulders of parents: "The place for the correc- tion of a child is in its home and if parents prove negligent and unworthy the state should do the best it can to put itself in the place of loving and wise parents." Warming to his audience, the judge urged the creation of a juvenile court in Montana, assur- ing the teachers that such a court would attempt "to get at the causes of crime and eliminate the effects."I Montana's child savers, a diverse group of middle- and upper- class men and women, called for the creation of a juvenile court in the state's larger cities, staffed by judges of Lindsey's stature with a personal style of justice unencumbered by due Robert A. Harvie is chairman of the Department of Sociology at Montana State University. The author wishes to thank Dr. Thomas Wessel, of the Department of History at Montana State University, who read an earlier version of this manu- script. That version was presented at the Transboundary Conference on Legal History of the West and Northwest of North America, held in February 1991 at Victoria, British Columbia. 'Butte Evening News, January 26, 1907. Lindsey was widely known throughout the United States as an advocate of the informal, personal style of dealing with young offenders, Ben B. Lindsey, "The Boy and the Court: the Colorado Law and Its Administration," Charities 13 (1904), 350-57. 128 WESTERN LEGAL HISTORY VOL.