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Western Legal History WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY VOLUME 27, NUMBER 1 2014 Western Legal History is published semiannually, in spring and fall, by the Ninth Judicial Circuit Historical Society, 125 S. Grand Avenue, Pasadena, California 91105, j626) 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 @2014, 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; Historical Abstracts; the Index to Legal Periodicals;and the Legal Resources Index. NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY BOARD OF DIRECTORS GARETH T. EVANS, EsQ. LADD A. BAUMANN, ESQ. Chair BETH MARY BOLLINGER, EsQ. PAUL T. FRIEDMAN, EsQ. Vice Chair HON. CHRISTINE W. BYRD RITA M. HAEUSLER, EsQ. A. MARISA CHUN, EsQ. Treasurer DANIEL P. COLLINS, ESQ. WILLIAM I. EDLUND, ESQ. HON. MORRISoN C. ENGLAND, JR. Secretary TIMOTHY R. FISHER, ESQ. JEFFREY M. FISHER, ESQ. Immediate Past Chair PARKER C. FOLSE III, EsQ. SETH ARONSON, ESQ. FREDERICK P. FURTH, ESO. JEROME 1. BRAUN, Eso. HELKEI S. HEMMINGER, ESQ. JOHN CARSON, ESO. ERNEST A. HoDAL, ESO. HON. DAVID 0. CARTER HON. PROCTER HUG, JR. HON. RICHARD R. CLIFTON HON. SUSAN Y. ILLSTON ROBERT H. FAIRBANK, ESQ. HON. ROBERT J. JOHNSTON GREGORY S. FISHER, ESQ. PROF. COLIN JONES DONALD L. GAFFNEY, EsQ. B. ANN KEITH, ESQ. GERSHAM GOLDSTEIN, EsQ. HoN. VICTOR B. KENTON PETER F. HABEIN, ESQ. KENNETH N. KLEE, ESQ. DEBORAH K. KRISTENSEN, ESO. TIMOTHY M. LYNCH, ESQ. ROBERT D. LOWRY, ESO. RON MAROKO, ESQ. THOMAS J. McDERMOTT, JR., ESQ. SONIA R. MARTIN, ESQ. HON. M. MARGARET McKEOWN HOWARD G. MCPHERSON, ESQ. TERRY NAFISI DIANE M. MYERS, ESQ. JEFFREY R. PORTNOY, ESQ. HON. GERALDINE MUND HON. MANUEL L. REAL HON. RANDALL NEWSOME HON. PAUL G. ROSENBLATT HON. DIARMUID F. O'SCANNLAIN HON. MARY M. SCHROEDER HON. KAREN A. OVERSTREET MARC M. SELTZER, ESQ. WILLIAM D. PICKETT, Eso. HON. MILAN D. SMITH, JR. PER A. RAMFeoRD, ESO. HoN. CHRISTINA ANN SNYDER ARTHUR E ROECA, EsQ. DEAN A. ZIERL, Eso. GAIL MIGoAL TITLE, Eso. ROBERT S. WARREN, Eso. ADVISORY COUNCIL DOUGLAS R. YOUNG, EsQ. J. BRUCE ALVERSON, ESQ. MERYL L. YOUNG, Eso. LEROY J. BARKER, ESQ. WESTERN LEGAL HISTORY BRADLEY B. WILLIAMs, EDITOR JUDITH FORMAN, COPY/PRODUCTION EDITOR S. DEBORAH KANG, BOOK REVIEw EDITOR EDITORIAL BOARD JUDITH AUSTIN DAVID J. LANGUM Boise Samford University GORDON MORRIS BAKKEN Cumberland School of Law California State University, R. JAMES MOONEY Fullerton University of Oregon MICHAL BELKNAP Law School California Western PAULA PETRIK, PH.D. School of Law George Mason University ELIZABETH J. CABRASER, ESQ. PETER L. REICH San Francisco Whittier Law School LAWRENCE M. FRIEDMAN JOHN PHILLIP REID Stanford Law School New York University CHRISTIAN G. FRITZ School of Law University of New Mexico HARRY N. SCHEIBER, PH.D. School of Law University of California DALE GOBLE Boalt Hall School of Law University of Idaho MOLLY SELVIN, PH.D. School of Law Santa Monica PAUL BRYAN GRAY, ESQ. ROBERT S. WOLFE, ESQ. Claremont Santa Ana MICHAEL GRIFFITH, PH.D. Oakland ARTHUR D. HELLMAN University of Pittsburgh School of Law WESTERN LEGAL HIsToRY VOLUME 27, NUMBER I WINTER/SPRING 2014 CONTENTS A Civil Death: Mormon Disenfran- chisement in the Inter-Mountain West Winston Bowman The Frontier Legal System, Tombstone Silver Mines, and Pennsylvania Oil Men Cynthia E Hayostek 31 "Talk the Language of the Larger World": Fishing Wars, Natural Resources, and the Birth of the Sovereignty Movement in the Postwar Pacific Northwest John J Dougherty Book Reviews S. Deborah Kang, Book Review Editor 91 Articles of Related Interest 101 Memberships, Contributions, & Grants 105 Cover photo: Polygamist prisoners at the Utah State Penitentiary, at Sugar House, c. 1889. George Q. Cannon sits in the center, holding flowers. (Courtesy of Utah State Historical Society) A CIVIL DEATH: MORMON DISENFRANCHISEMENT IN THE INTER-MOUNTAIN WEST WINSTON BOWMAN INTRODUCTION Between the Civil War and the First World War, Americans grappled with the concept of citizenship as never before. Historians rightly emphasize the role race and gender played in the transformation of citizenship's legal and cultural meanings during this period.' Nevertheless, this article focuses on the nexus between religion and citizenship, examining federal and state attempts to disenfranchise Mormons in the mountain West in the 1880s. Disenfranchisement was just one component of a series of constitutional conflicts over the Church of Latter- day Saints' promotion of polygamy before 1890, but it was particularly significant for two reasons.' First, it underlines the 'For examples of the voluminous body of scholarship on these subjects, see, generally, Rogers M. Smith, Civic Ideals: Con flicring Visions of Citizenship in U.S. History (New Haven, CT, 19971; Ian Hanley Lopez White By Law: The Le- gal Constructionof Race (New York, 1997); Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligationsof Citizenship (New York, 1999); Catherine Dauvergne, "Citizenship with a Vengeance," Theoretical Inqui- ries in Law 8 (2007): 489; Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (New York, 2008). 'See, generally, Sarah Barringer Gordon, The Mormon Question: Polygamy and ConstitutionalConflict in Nineteenth-CenturyAmerica (Chapel Hill, NC, 2002); Leonard J. Arrington, The Mormons in Nevada (Las Vegas, NV, 1979). Winston A. Bowman is a Ph.D. candidate in American history at Brandeis University. He holds an M.A. in American history from Brandeis, a J.D. from Boston University School of Law, and a B.A. in history from the University of Nevada, Las Vegas. This article was the recipient of the 2013 Jerome . Braun Prize in Western Legal History. 2 WESTERN LEGAL HiSTORY Vot. 27, No. I impact that anti-Mormonism exerted on Republican legislators and Supreme Court justices' understandings of citizenship at a critical juncture; second, it shows how the dubious theories justifying Mormon disenfranchisement provided the foundations for a complex lattice of modern felon disenfranchisement laws that currently deny the vote to approximately six million adult American citizens. Modern jurists are wont to conflate felon disenfranchise- ment laws' long standing in the statute books with a solid jurisprudential pedigree or, at least, a reassuring sense of stabil- ity. By focusing on the tensions that anti-Mormon laws caused between and among politicians, judges, and lawyers more than a hundred years ago, I aim to challenge this misconception. THE NATIONAL RESPONSE TO POLYGAMY IN THE WEST Mormons were generally an unpopular group throughout their early existence.' Nevertheless, national efforts to interdict Mormon polygamy intensified
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