WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY VOLUME 6, NUMBER 2 SUMMER/FALL 1993 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) 795-0266. 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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Chairman San Francisco San Francisco MICHAEL E. McNICHOLS, ESQ. JAMES P. KLEINBERG, ESQ. Lewiston President MOLLY MUNGER, ESQ. San Jose Los Angeles CHRISTINE S.W. BYRD, ESQ. FORREST A. PLANT, ESQ. Vice President Sacramento Los Angeles HON. MANUEL L. REAL GERSHAM GOLDSTEIN, ESQ. Los Angeles Treasurer CHARLES B. RENFREW, ESQ. Portland San Francisco CHET ORLOFF HON. PAUL G. ROSENBLATT Secretary Phoenix Portland HON. HAROLD L. RYAN JEROME . BRAUN, ESQ Boise Immediate Past President GARVIN F. SHALLENBERGER, ESQ, San Francisco Costa Mesa J. DAVID ANDREWS, ESQ. DONALD C. SMALTZ, ESQ. Seattle Los Angeles H. JESSE ARNELLE, ESQ. GERALD K. SMITH, ESQ. San Francisco Phoenix LEROY J. BARKER, ESQ. HON. JOSEPH T. SNEED Anchorage San Francisco THOMAS D. BEATTY, ESQ. CHRISTINA A. SNYDER, ESQ, Las Vegas Los Angeles HON. JAMES M. BURNS Portland WILLIAM E. TRAUTMAN, ESQ. San Francisco DAVID A. CATHCART, ESQ. Los Angeles WILLIAM W. VAUGHN, ESQ. Los Angeles HON. BARBARA A. CAULFIELD ROBERTS. WARREN, ESQ. San Francisco Los Angeles GEORGE W. COOMBE, JR., ESQ. San Francisco JOHN L. COOPER, ESQ. BOARD MEMBERS EMERITI San Francisco GEORGE C. DALTHORP, ESQ. JOSEPH A. BALL, ESQ. Billings Long Beach C. F. DAMON, JR., ESQ. HON. RICHARD H. CHAMBERS Honolulu Tueson F. BRUCE DODGE, ESQ. ALLAN E. CHARLES, ESQ. San Francisco San Francisco JEROME B. FALK, JR., ESQ. MORRIS M. DOYLE, ESQ. San Francisco San Francisco MURRAY M. FIELDS, ESQ. JAMES C. GARLINGTON, ESQ. Los Angeles Missoula MAX L. GILLAM, ESQ. SHIRLEY M. HUFSTEDLER, ESQ. Los Angeles Los Angeles HON. ALFRED T. GOODWIN LEONARD S. JANOFSKY, ESQ. Pasadena Santa Monica HON. PROCTOR HUG, JR. HON, JOHN F. KILKENNY Reno Portland J. STERLING HUTCHESON, ESQ. HON. SAMUEL P. KING San Diego Honolulu SUSAN Y. ILLSTON, ESQ. MARCUS MATTSON, ESQ. Burlingame Los Angeles ELWOOD S. KENDRICK, ESQ. JOHN A. SUTRO, SR., ESQ. Los Angeles San Francisco FREDERICK K. KUNZEL, ESQ. SHARP WHITMORE, ESQ. San Diego Fallbrook 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 Califoria Western School of CLAUS-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, California Lawyer Senior Circuit Judge, U.S. HARRY N. SCHEIBER Court of Appeals for the Ninth Boalt Hall, University of Circuit California ROBERT W. GORDON MOLLY SELVIN, PH.D. Stanford Law School Santa Monica MICHAEL GRIFFITH CHARLES H. SHELDON Archivist, U.S. District Court, Washington State University Northern District of California CAROLINE P. STOEL JAMES W. HULSE Portland State University University of Nevada, Reno STEPHEN L. WASBY LOUISE LaMOTHE, ESQ. State University of New York, Los Angeles Albany DAVID J. LANGUM JOHN R. WUNDER Cumberland School of Law, University of Nebraska Samford University WESTERN LEGAL HISTORY VOLUME 6, NUMBER 2 SUMMER/FALL 1993 CONTENTS "Many Difficult and Interesting Questions of Law": Indian Depredation Cases Before the United States Court of Claims, 1891-1920 Larry C. Skogen 129 "Send the Bird and Cage": The Development of Divorce Law in Wyoming, 1868-1900 Paula Petrik 153 The Ninth Circuit and Natural-Resource Development in the Early Twentieth Century David C. Frederick 183 Law and Empire: The Extension of Law to Vancouver Island and New Caledonia Barry Morton Gough Book Reviews 229 Articles of Related Interest 247 Memberships and Contributions 251 Cover Photograph:In this issue, David C. Frederick explains how the Ninth Circuit has been caught up in decisions over the exploitation of the West's natural resources since the early part of the century. (Oregon Historical Society) The Court of Claims often took years to settle claims, as in the case of the award made in 1908 to Carl Hayden (later a U.S. senator from Arizona), for a claim filed some forty years earlier by his father, Charles Trumbull Hayden, pictured here. (Archives and Manuscripts, University Libraries, Arizona State University) "MANY DIFFICULT AND INTERESTING QUESTIONS OF LAW": INDIAN DEPREDATION CASES BEFORE THE UNITED STATES COURT OF CLAIMS, 1891-1920 LARRY C. SKOGEN Only John Marshall, chief justice of the United States Supreme Court, could have condensed such a complex issue into one succinct statement. "The condition of the Indians in relations to the United States," he wrote in 1831, "is perhaps unlike that of any other two people in existence."' Although many aspects of that legal and political connection, born with the Commerce Clause of the United States Constitu- tion and sustained by treaties, agreements, laws, and court decisions, have been the subject of rigorous examination, cer- tain areas of federal policy toward Native Americans remain largely unexplored. One of them is the Indian depredation claims system, which lasted from 1796 to 1920.2 Designed to Larry Skogen is a captain in the United States Air Force and assistant professor of history at the United States Air Force Academy. The author thanks Dr. Betsy Muenger, Air Force Academy Command historian, and Drs. Robert A. Trennert, Jr., Peter Iverson, and Albert Hurtado, all of Arizona State Univer- sity, for their insightful and constructive comments on early versions of this article. 'Cherokee Nation v. Georgia, 5 Peters, 15-20 (1831),