UNLV Theses, Dissertations, Professional Papers, and Capstones 12-1-2017 The Transformation of American Federalism, 1848-1912 Lance Sorenson University of Nevada, Las Vegas Follow this and additional works at: https://digitalscholarship.unlv.edu/thesesdissertations Part of the Natural Resources Management and Policy Commons, and the United States History Commons Repository Citation Sorenson, Lance, "The Transformation of American Federalism, 1848-1912" (2017). UNLV Theses, Dissertations, Professional Papers, and Capstones. 3171. http://dx.doi.org/10.34917/11889754 This Dissertation is protected by copyright and/or related rights. It has been brought to you by Digital Scholarship@UNLV with permission from the rights-holder(s). You are free to use this Dissertation in any way that is permitted by the copyright and related rights legislation that applies to your use. 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THE TRANSFORMATION OF AMERICAN FEDERALISM, 1848-1912 By Lance Sorenson Bachelor of Arts – Philosophy Bachelor of Arts – Economics Pepperdine University 2002 Master of Arts – History University of Nevada, Las Vegas 2012 Juris Doctorate Pepperdine University 2005 A dissertation submitted in partial fulfillment of the requirements for the Doctor of Philosophy – History Department of History College of Liberal Arts The Graduate College University of Nevada, Las Vegas December 2017 Dissertation Approval The Graduate College The University of Nevada, Las Vegas November 2, 2017 This dissertation prepared by Lance Sorenson entitled The Transformation of American Federalism, 1848-1912 is approved in partial fulfillment of the requirements for the degree of Doctor of Philosophy – History Department of History David Tanenhaus, Ph.D. Kathryn Hausbeck Korgan, Ph.D. Examination Committee Chair Graduate College Interim Dean Maria Raquel Casas, Ph.D. Examination Committee Member Paul Werth, Ph.D. Examination Committee Member Daniel W. Hamilton, Ph.D. Examination Committee Member Rebecca Gill, Ph.D. Graduate College Faculty Representative ii ABSTRACT United States expansion following the Mexican-American War served as the catalyst for a reinvention of American Federalism. While much of the historiography traces the accretion of sovereign power in the national government to events caused by the divisions between northern states and southern states, there is an important and understudied East to West component of the process by which sovereign boundaries changed. The American West is a legal space where the hazily defined and capacious concept of federalism received fuller form and clearer definition. During the late nineteenth century and first few years of the twentieth century, the United States modified and ultimately solidified three important relationships: (1) its relationship with Native American Tribes; (2) its relationship with territorial law and governance; and (3) its relationship to the land and natural resources. The Framers of the Constitution, including those of the Fourteenth Amendment, acknowledged Native American tribal sovereignty. The power of tribes to police themselves remained relatively undisturbed until one particular specie of intra-tribal violence attracted the attention of Anglo- American authorities – witch killings. With the sensationalization and publication of witch killings, Native Americans were introduced to the Anglo-American criminal justice system. Since that time, the United States iii has severely curtailed Native American power to police and regulate their own tribes. After the Civil War, the national government re-formulated territorial governance to assert greater control over areas of law, including common law, traditionally reserved to local sovereigns, and did so in the service of a nationalizing project. Concerned that local territorial citizens might re- assert their local laws following statehood, Congress placed increasingly stringent conditions on statehood for territories in the West. Finally, the national government asserted robust powers not only over people in the West, but also over its most valuable natural resources – minerals, timber, water, and land. Whereas the national government had initially served as something akin to a real estate sales agent for the nation, ensuring that the public domain was disposed, it adopted a different role in the West – that of a Landlord. All these changes necessitated new theories of federalism. Legal elites articulated these theories in Supreme Court cases, legal commentaries, and Congressional legislation. By the second decade of the twentieth century, the hazily defined federalism that had existed in flux had congealed. iv ACKNOWLEDGMENTS Graduate students in history learn, at the outset of their education, to adopt a critical eye in the reading of historical scholarship. The requirement to write a dissertation, I am convinced, serves to temper and refine our critical attitude in two ways. First, it instills an appreciation of the difficulty in conducting sound research and writing well. Second, it reminds us that scholarly inquiry is a collaborative enterprise. Our research and writing is enhanced through formal processes and informal conversations. This work is far better than it would have been due to helpful feedback from generous scholars. First and foremost, David Tanenhaus is the epitome of kindness and is everything one could hope for in an advisor. He combines gentle and thoughtful commentary with a generosity of time unmatched in academia. And, based on his email response times, I believe he never sleeps. The other members of my dissertation committee have provided outstanding feedback and support: Paul Werth, Maria Raquel Casas, Dean Daniel Hamilton, and Rebecca Gill. The UNLV History community of both past and present is full of wonderful people who have helped me develop as a historian and a person: Michael Green, David Holland, Greg Hise, Colin Loader, Elspeth Whitney, William Bauer, Elizabeth Nelson, Mary Wammack, Eugene Moehring, Greg Brown, Nick Pellegrino, Jordan Watkins, Stefani Evans, and the three “Andrews” – Andy Fry, Andy Kirk and the late Andrew Bell. I would especially like to thank Heather Nepa and Annette Amdal who have not only shepherded me through this process, but whose kind words of encouragement have meant more than they realize. v I have been very fortunate to spend time as a fellow at Stanford University which has provided outstanding access for archival research. Its best assets, however, are its many great scholars. This project has benefited from the conversations I’ve had and feedback I’ve received from: Mark Storslee, Geoff Sigalet, Michael McConnell, Greg Ablavsky, Lawrence Friedman, Robert Gordon, Jonathan Geinapp, Jack Rakove and David Kennedy. Additionally, I’m grateful for thoughtful comments from Will Baude, Maeva Marcus, Barry Cushman, Lee Otis and Jason Iuliano. When I moved to Las Vegas to attend UNLV, people often asked me if I gamble. I was not sure how to answer. Although I tend to avoid casinos, I did leave a secure job in legal practice in order to pursue a graduate degree in history, a move that seemed to entail more risk than putting a quarter in a slot machine. The pursuit of this dream was risky, and would not have been possible without the support of my wife, Ashleigh, who has given me nothing but love and encouragement on this journey. Likewise, my children Malakai, Rori, and Zuri are my source of joy and serve as a constant reminder of what is truly important. Finally, I would not have been able to complete this dissertation and degree without the love and support of my parents Brice and Colleen Sorenson and my parents-in-law Mark and Alice Evans. vi TABLE OF CONTENTS Abstract ................................................................................................................................................. iii Acknowledgments ................................................................................................................................. v Table of Contents ................................................................................................................................. vii List of Figures ..................................................................................................................................... viii Introduction ............................................................................................................................................ 1 Part I: E Pluribus, Duas – The Curtailment of Native American Tribal Sovereignty ........................ 23 Chapter 1: Early Anglo-American Institutional Engagement with Native Americans .................. 31 Chapter 2: Witches and Criminal Justice ........................................................................................ 49 Chapter 3: Nation to Nation? ..................................................................................................... 63 Part II: Sovereignty Subject to Veto - Western Territories ................................................................ 94 Chapter 4: Surveying the Scene ...................................................................................................