Four—
Intrigue at Anvil Creek

[T]he high-handed and grossly illegal proceedings initiated almost as soon as Judge Noyes and McKenzie had set foot on Alaskan territory at Nome . . . may be safely and fortunately said to have no parallel in the jurisprudence of this country.
Judge Erskine M. Ross, 1901

By the turn of the century, the volume of appeals involving the Chinese had begun to decline and the circuit courts of appeals were ready to celebrate their first decade of existence. The Ninth Circuit had faced unique challenges in the Stanford matter and had handled the vast majority of the Chinese-related appeals percolating in the nation's federal courts. Its jurisdiction covered the largest tract among the nine circuits and included the last of America's great frontiers, Alaska. From this Territory emerged a crisis that threatened the appellate court's authority over its constituent subordinate courts and imperiled development, not only in Alaska, but potentially throughout the West.

I. Alaskan Gold

Although Russians had unearthed small amounts of gold in Alaska before it became part of the United States in 1867, full-fledged gold rushes to the region did not begin until the 1880s. Discovery of gold in Canada around Dawson, near the Alaska border, set off a stampede to the Klondike region during 1897 and 1898 and inspired gold-digging elsewhere in Alaska. During the autumn of 1897, prospecting began in earnest on the Seward Peninsula, a far western spot just below the Arctic Circle, across the Bering Strait from Siberia. Accessible only by boat and only during the part of the year—typically, between June and October—

when the seaward passageway was free of ice, this region attracted a group of eight men who discovered gold placers in March, 1898, on two tributary streams of the Niukluk River. Rather than dig deep holes or tunnels, the prospectors worked the placer mines by gathering ore from surface gravel and washing away unwanted dirt to retain the valuable mineral particles. After a month of panning, the men organized the first mining district on the Seward Peninsula. Before long the Federal Reporter would be studded with their names: Melsing, Tornanses, Anderson, Libby, Mordaunt, Hultberg, Blake, Kittilsen. These prospectors staked their claims near Council City, where John Brynteson, a coal miner, Erik O. Lindblom, a tailor, and Jafet Lindeberg, a reindeer herder, met by chance in August, 1898.^[1]

Brynteson, Lindblom, and Lindeberg all were originally natives of Scandinavia: Brynteson and Lindblom from Sweden, Lindeberg from Norway. By the time they met, Brynteson and Lindblom were already naturalized American citizens, but Lindeberg was not—a status he would change before long. These native Scandinavians briefly prospected in the Council City district but soon became dissatisfied with that location. They made their way up the coast to the mouth of the Snake River, then followed it to a tributary known as Anvil Creek, named for an anvil-shaped rock that stood on the summit of a nearby mountain. On September 21, 1898, these three greenhorn prospectors discovered gold in large quantities, and the next day they began staking claims. They called the first one Discovery Claim, a collective claim later held under the corporate name of the Pioneer Mining Company. Each prospector also staked out an individual claim along Anvil Creek. In late September and mid-October of 1898, the prospectors filed their notices of location, a step necessary to preserve their claims. Under United States law, mineral deposits on public land were open to exploration and purchase by United States citizens and persons who had declared their intention to become citizens. Although Lindeberg was not at that time a citizen of the United States, he had formally applied for citizenship to the commissioner at St. Michael on July 22, 1898.^[2]

The placer discoveries on Anvil Creek in September of 1898 set off a new gold rush. The first prospectors to arrive were other natives of Scandinavia who lived nearby. They quickly staked the whole district by posting notices of location and boundary markings, tasks made easy by the area's small size. Approximately half of Anvil Creek's six-mile-long streambed appeared to contain "pay gravel." The average claim was 660 feet wide and 1,320 feet long. Thus, four such claims extended a little

over a mile along the creek and twelve covered the entire gold-rich area. These prospectors also liberally exploited the right to secure claims for others through powers of attorney.^[3]

Despite efforts by the locators to keep their bonanza a secret, word of the discovery reached the outside world just as the autumn ice began to block seaward traffic to Nome. Anticipation grew over the winter as the news spread throughout the region and along the Pacific Coast. Thousands traveled north during the spring thaw. But when the first newcomers arrived in mid-1899, they discovered that the original locators held a virtual monopoly on the small, rich area around Anvil Creek. The first response was to stake the entire surrounding district in hopes of a lucky strike. By the end of December, 1898, 300 claims were recorded; by April of 1899, 1,200; by July, 2,000; and by December, 4,500. Most of the claims were of dubious legality, for few of the miners concerned themselves with the legal requirements of staking a valid gold discovery claim, which included the performance of assessment work. The more enterprising and devious of the later arrivals sought to "jump" the native Scandinavians' claims by filing competing claims and challenging the legality of the original locators' claims in quiet title suits. In December of 1898, the first group of claim-jumpers targeted claims obtained through the original locators' use of allegedly illegal powers of attorney. Other claim-jumpers asserted that the Scandinavian-born locators were not citizens and therefore could not legally hold a claim. Although these objections were completely unfounded in fact and in law, a number of people attempted to steal the claims of Brynteson, Lindblom, and Lindeberg.^[4] Louis Melsing, a jumper from Council City, attempted in February of 1899 to take legal control of Anvil Creek Claim No. 10, which belonged to Johan S. Tornanses. On June 5, 1899, another determined jumper, Robert Chipps, contested Lindeberg's claims. His suit challenged the citizenship of the three Scandinavians and asserted that their location was void on the ground that aliens could not establish a valid mining claim.^[5]

Since the laws of the Alaska Territory in fact permitted aliens to hold mining claims, the late arrivals to the area decided to take matters into their own hands. In July of 1899, a town meeting was called in Nome, where within two months the population had mushroomed from 250 to 2,500. On the agenda was a resolution declaring all existing mining claims to be void. When the resolution passed, the conspirators who conceived the ordinance planned to light a series of signals to awaiting comrades who would immediately restake Anvil Creek. An army officer

named Lieutenant Oliver Spaulding somehow got wind of the plan and determined to prevent this travesty of justice. Backed by only a few soldiers, Spaulding bravely ordered the resolution to be withdrawn, on threat of clearing the hall at bayonet-point. The meeting broke up after a two-minute stalemate. Although Spaulding's action exceeded his authority, it and some good luck prevented rioting and bloodshed. The immediate crisis passed when a miner discovered gold on the beach sands adjacent to Nome a few days later. The Anvil Creek claims were momentarily forgotten as nearly 2,000 men and women worked side by side to pan gold amounting to $2 million.

Not all sought riches through illegal means. Charles D. Lane soon arrived from the West Coast, where he had earned a reputation for his business savvy and fair dealing. Instead of jumping claims or filing lawsuits, he negotiated with the original locators and secured four of their claims for a reported $300,000. Some of the original locators were undoubtedly fed up with the competition, the litigation, and the threats to their lives. As a bona-fide purchaser with experience in litigation, Lane planned to fight off the claim-jumpers in court and develop the claims with state-of-the-art equipment. He eventually brought in modern appliances, established a line of steamers from San Francisco to Nome, erected warehouses and other buildings, and built and equipped a railroad from Nome to the mines. He named his company the Wild Goose Mining and Trading Company. This was one wild goose whose chase would not prove to be in vain.^[6]

Lane's arrival elevated the struggle to wrest control of the rich Anvil Creek claims to a higher level of sophistication. Undaunted, the claim-jumpers retained the Nome law firm of Hubbard, Beeman, and Hume to press their actions against the Pioneer and Wild Goose companies. As one of the first steps in this representation, Frank Hubbard went to Washington in 1899, where he met the claim-jumper Robert Chipps and a man named Alexander McKenzie, an influential political boss of Minnesota and the Dakotas. With a capital of $15 million, McKenzie had formed a corporation known as the Alaska Gold Mining Company. Its purpose was to procure titles held by jumpers of the Nome mining claims—including Chipps's location on Discovery Claim at Anvil Creek—by trading shares for the jump-claims. McKenzie would keep a majority of the stock and would parcel out minority rights to the claim-jumpers.^[7]

The actions of Hubbard, Chipps, and McKenzie in Washington posed a distinct threat to the original locators' claims. At that time, Congress

was considering legislation to provide a civil government for Alaska. Few realized that "the 1900 civil code was put together in the middle of a conspiracy designed to steal the richest claims in the Nome district." Among other provisions, the bill copied an Oregon law guaranteeing aliens the right to acquire and hold lands in Alaska on the same basis as citizens of the United States. This provision met immediate opposition from Senators Henry Hansbrough of North Dakota and Thomas H. Carter of Montana, both thought to be in cahoots with McKenzie. Carter moved to amend the provision to prohibit aliens from holding or conveying mining claims in Alaska. This amendment would reverse a Supreme Court decision that upheld the right of aliens to hold title to a mining claim by conveyance. Senator Hansbrough frankly admitted that his amendment targeted the Scandinavian prospectors.^[8]

That such a provision would have violated the Fifth Amendment by taking property without just compensation was not lost on Senators William M. Stewart of Nevada, Henry M. Teller of Colorado, John C. Spooner of Wisconsin, William B. Bate of Tennessee, and Knute Nelson of Minnesota. A series of ugly debates on the Senate floor scarcely concealed the influence of McKenzie behind Carter and Hansbrough and of Charles Lane behind Stewart. Nelson, himself a native of Norway and a man of high integrity and intellect, tersely countered the pro-McKenzie forces by stating that "the object of this amendment is not to legislate for the future. It is to legislate in the interest of those who have jumped these claims." After vigorous debate the amendment was withdrawn, and the bill establishing a civil government for Alaska became law on June 6, 1900. This same statute established a federal district court for the district of Alaska and authorized the appointment of three judges to reside in various divisions of that territory. Though defeated in his initial bid to shape the law to his liking, McKenzie was not about to give up the fight to gain control over the Anvil Creek claims. He worked behind the scenes to induce his friend President McKinley to appoint Arthur H. Noyes of Minnesota as judge for Division No. 2, which included Nome.

The statute required the Division No. 2 judge to reside in St. Michael and to hold at least one term each year there, beginning the third Monday in June. The law also permitted the judges to hold special terms of court at such times and other places in their district as they deemed appropriate, provided that notice was given at least thirty days before such a special term was held.^[9] These statutory requirements would provide an important basis for judging the propriety of Judge Noyes's future actions. A second element of future importance was the authority under

which Noyes was appointed. Unlike justices of the Supreme Court and judges of the "inferior" federal courts designated by Article III of the Constitution, the Alaska district judges appointed under the 1900 law did not enjoy the same removal protections. Article III judges may be removed by impeachment and conviction by Congress. Judges of the territorial courts, by contrast, were removable at will by the president. Some chief executives freely exercised this authority to exploit patronage opportunities. The territorial judges had frequently evoked complaints, especially in regions that fell within the Ninth Circuit's geographical boundaries. Early Nevada territorial judges, for example, were accused of maintaining financial interests in the mines that were litigated in their courts, and one Arizona territorial judge refused to hold court in the town of Globe unless its locals provided a residence for him.^[10] Noyes easily topped these indiscretions. His scheming with McKenzie presented the Ninth Circuit with its first major crisis.

II. Interlopers

Enactment of the Alaska Civil Code signaled the growing significance Congress attached to the Territory. Due to the Klondike and Nome gold rushes, Alaska's population nearly doubled between 1890 and 1900, from 32,052 to 63,592. But this "mild but unenlightened interest" in the Territory's affairs did not stop McKenzie's scheming to take control of the rich Anvil Creek claims. He saw Noyes's appointment as simply the next step in an alternate plan. For the unsuspecting miners at Nome, the judge's arrival offered the promise of law and order in a town brimming with gamblers, prostitutes, and more than fifty saloons. But the circumstantial evidence suggests that Noyes never intended to serve as an honest judge in his division.^[11]

Noyes and McKenzie, who were old friends, traveled with Chipps from Seattle aboard the steamer Senator , arriving at Nome on July 19, 1900. Chipps and McKenzie disembarked, but Noyes did not touch land until two days later. By then the time fixed for holding a term of the court at St. Michael had elapsed—the statute having provided for such term to begin on the third Monday in June. And, under the law, Noyes had no authority to hold a special term of court until thirty days after posting notice. When McKenzie left the ship on July 19, he had gone immediately to the office of Hubbard, Beeman and Hume. The law firm had a 50 percent contingent interest in the Anvil Creek litigation. McKenzie told W. T. Hume that he "controlled the appointment of the judge and the

district attorney." If the firm wanted to press its clients' claims against the original locators in the district court, the partners had better transfer their interest to Mckenzie's corporation and receive in lieu thereof certificates of stock. Left with little choice, they accepted these terms. Shortly thereafter, McKenzie also insisted that the lawyers give him an additional one-fourth interest in their firm. Hume initially protested, but when McKenzie threatened to ruin Hume's legal practice and sabotage his clients' interests, he consented.^[12]

The claim-jumping suits provided legal cover for McKenzie's real goal of controlling the rich Anvil Creek mining claims. In theory, so long as the true ownership was in doubt, neither the original locators nor the claim-jumpers could work the claims. Having displaced the law firm that represented the claim-jumpers, McKenzie had them prepare papers for the appointment of receivers in four actions in which Hubbard, Beeman and Hume were attorneys for plaintiffs. As judge, Noyes could then appoint McKenzie himself as the receiver of the property. A receiver in a property dispute typically serves to ensure preservation of the property, preventing either side from depriving the other of mineral wealth and thus allowing the court to adjudicate competing claims to title in a fair and just manner. The cliché that this was hornbook law, which should have been well known to Noyes and McKenzie, underscored the correct principle: "The business of a receiver of a mining property is to preserve the property and to close out the business turned over to him, and a court of equity has no authority to direct its receiver in charge of mines to carry on a general mining business."^[13] McKenzie's conception of what a receiver should be, however, was quite different. Just how different was not immediately evident to the miners at Anvil Creek.

On the morning of July 23, McKenzie bustled around Nome preparing to put his plan into effect. While the lawyers were readying papers to request the appointment of a receiver, McKenzie was rounding up wagons to transport his men to Anvil Creek. In the late afternoon, Hume called on Judge Noyes at his hotel to present the papers. The lawyer began reading the affidavit setting out the facts purporting to justify the receivership appointment, but Noyes cut him off. A reading was unnecessary. Noyes accepted their arguments without deigning to hear from the other side, and said that as a stranger to the territory, he preferred to appoint someone he knew. Noyes then named McKenzie receiver, but with instructions to take immediate possession of the relevant mining claims, to work them, and to preserve the gold dust and proceeds of the claims subject to further orders of the court.^[14]

Noyes took this action a scant two days after leaving the ship. The court had not yet been organized, nor had it issued notice of a special term. Moreover, Noyes had failed to comply with the statute requiring a term of court to be held in St. Michael beginning the third Monday of June. All this seemed quite irrelevant to the judge at the time, as did the necessity of having some legal or equitable justification for the appointment of a receiver, which Hume's papers failed to posit. Had a compelling case been made for placing a receiver at the mines, in all probability the lesser step of ordering an injunction would have sufficed to protect the claims of the rightful owners, because it would have halted all activity at the mines. Instead, within minutes of the official receivership appointment and before the papers were filed with the clerk, McKenzie was whipping his teams toward Anvil Creek. The miners of the Wild Goose and Pioneer mining companies first learned of the receiver's appointment when McKenzie and his men arrived at Anvil Creek bearing official papers.^[15]

The following day, Samuel Knight, an attorney for the original locators, requested a hearing. Noyes at first refused, stating that he would take up the matter when he returned from St. Michael, but Knight persisted. Noyes reluctantly agreed and heard arguments at three o'clock that afternoon, after which he announced that he would render his decision the following Monday, six days later. In the meantime, another attorney for the original locators, W. H. Metson, challenged the broad sweep of Noyes's July 23 order, which permitted the receiver to take possession not only of the mine but also of the miners' tents and personal property. Metson's appearance before Noyes gave the judge an opportunity to upbraid the lawyer for his clients' actions up at Anvil Creek: "'Your people are preventing the receiver from working the Discovery claim. I am going to tie your people up all around. I am going to make an order which will take everything away from them.'" Noyes then enlarged McKenzie's powers as receiver by explicitly directing him to "take possession of all sluice boxes, pumps, excavations, machinery, pipe, plant, boarding houses, tents, buildings, safes, scales, and all personal property, fixed and movable, gold, gold dust, and precious metals, money boxes, or coin, and all personal property upon said claim." McKenzie immediately implemented the order. His men took possession of the original discoverers' personal property, their gold dust, and the business records for their mines.^[16]

Noyes then left for St. Michael. He had promised to return to Nome on July 30 to render a decision on the motion to rescind the receivership,

but that day expired without a ruling. Noyes managed to stall on this pivotal issue until August 10, when he denied the original locators' motion. By now it was becoming clear to them that McKenzie was hardly the disinterested receiver contemplated by ordinary legal process. But they did not know the depth of his corruption. They were unaware that McKenzie had purchased Robert Chipps's claimed title to the Discovery Claim, that he had muscled into a one-fourth contingent interest in the litigation, and that he exercised influence over Judge Noyes.^[17] Although the original locators were not privy to McKenzie's devious scheme, the complaints instituted by the claim-jumpers gave notice to lawyers of even average caliber that something was amiss. The complaints not only misrepresented the facts and the law on their face, but they also failed to plead the necessary elements for the appointment of a receiver.^[18]

Moreover, Noyes's requirement of a $5,000 bond for each claim was grossly inadequate to protect the parties. When Noyes appointed the receiver, the Discovery Claim was yielding $15,000 in gold dust per day. On adjoining claims, the Wild Goose Mining company was collecting between $5,000 and $10,000 daily. Instead of protecting both sides and deterring the receiver from wrongdoing, the assessed bond was a trifle—the equivalent of what the miners could produce in a matter of hours. Indeed, within weeks of taking possession of the mines, McKenzie's men extracted gold dust valued at more than $100,000. By mid-September he had accumulated a total of $130,000 in ore. McKenzie also allegedly confiscated more than $200,000 in gold dust that belonged to the original locators, who later sued McKenzie for $430,000 in damages, consisting of the value of the claim, their mining rights, and ruined mining tools.^[19]

Having failed to persuade Noyes to rescind the receivership appointment, counsel for the original locators next requested orders allowing them to appeal to the circuit court of appeals for the Ninth Circuit. Noyes denied their motion.^[20] At the time, the Ninth Circuit was not in session, but Judge Morrow in San Francisco entertained their emergency motions and issued writs of supersedeas for the purpose of overriding Noyes's rulings. Based on the "shocking record" presented to him, Morrow ordered McKenzie to restore the mining claims to the original locators, together with the gold, gold dust, and other personal property he had received under Noyes's orders.^[21] Because Morrow was the only circuit judge whose chambers were in San Francisco, where the court was headquartered—William Gilbert and Erskine Ross kept their chambers

in Portland and Los Angeles, respectively, and traveled to San Francisco for the court's sessions—he acted alone in issuing these orders.

Attorneys for the Pioneer and Wild Goose companies attempted to execute Judge Morrow's writs of supersedeas and proper citations, but McKenzie refused to comply with the orders and Noyes would not enforce them. The judge explained unconvincingly that "'I can do nothing about this order; this litigation has caused me a great deal of worry. My hands are tied; the court has taken the whole matter out of my hands. You gentlemen have got to fight this thing out among yourselves.'" He added, "'I shall make no order; it is not my duty to do so; it is not within my province or right to do so.'" Cornelius L. Vawter, the United States marshal assigned to Noyes's court, later testified that the judge said he "'was not going to do anything and McKenzie could do as he pleased.'"^[22]

Tension in the community escalated as word of Morrow's action leaked out. The Wild Goose and Pioneer companies' miners threatened to enforce the Ninth Circuit orders themselves. In a face-off with McKenzie, W. H. Metson reportedly forced the issue to near-violence at the mine site—a decision of dubious wisdom, for although the receiver presented an enormous target at 6'6", McKenzie had a reputation as the fastest draw in Dakota. Bloodshed was averted only by the timely arrival of soldiers.^[23]

As the situation unraveled, Noyes continued to display his contempt for the appellate court's orders: "'I have got a right to interpret those writs,'" Vawter recalled Noyes as saying. "'I don't know whether [the bonds] are genuine or not; I don't know who Frank Monckton is; I am not going to take any clerk of the court's word for it. . . . In any event,'" Noyes allegedly added, "'the Supreme Court will knock them out when it gets there.'" Noyes also spurned assistance from military officers who offered to enforce the Ninth Circuit writs. The soldiers fretted that vigilantism would ensue, especially if McKenzie refused to heed the appellate court's order. Noyes cautioned that "matters should rest [as they are], and peace and order be preserved, and I therefore request that you render such assistance to the marshal as may be necessary to maintain that peace and quiet." Maintaining the status quo, of course, meant McKenzie's continued plundering of the Anvil Creek claims.^[24] Noyes's unwillingness to implement the Ninth Circuit orders forced the Wild Goose and Pioneer lawyers once again to seek emergency assistance from San Francisco. Even with counsel in the Bay Area, the long delay gave the McKenzie gang appreciably more time to carry out its scheme.

Nevertheless, by early October the original locators had recaptured their mines by somehow persuading McKenzie to relinquish his control. But when the Pioneer and Wild Goose miners began to dig for gold and transport it out of Nome, Chipps, one of the original claim-jumpers, applied to the court for an injunction prohibiting the original locators from shipping gold dust outside the territorial jurisdiction of the court. Not surprisingly, Noyes granted the motion. He issued this order without requiring a bond, once again ignoring the original locators' interests. Meanwhile, two United States marshals were on their way to Nome from San Francisco, where Morrow had dispatched them to arrest Alexander McKenzie for contempt of court. The Ninth Circuit judge had acted quickly, mindful of the fast-approaching autumn freeze. The marshals arrested McKenzie on October 15, 1900, and charged him with contempt of court for disobeying the writs of supersedeas.^[25]

The receiver would not give in without a struggle. The marshals discovered that McKenzie was holding more than $200,000 in gold dust at the Alaska Banking and Safe-Deposit Company. McKenzie rebuffed their demand to hand over the keys to the deposit vaults that held the stolen dust. Moreover, he threatened violence if the marshals executed the Ninth Circuit orders. Undaunted, the deputy marshals secured military support, broke open the vaults at the bank, took the gold dust, and delivered it to the original locators as directed. They then proceeded to San Francisco, where McKenzie was brought to the bar of the court.^[26]

III. A Judicial Rescue

Nome rejoiced over McKenzie's arrest. "'It is seldom that a calamity happening to a single individual is productive of such universal joy as when McKenzie the boss, McKenzie the distributor of patronage, McKenzie the messiah, McKenzie the all seeing, the all wise, the all powerful, had become plain Mac the prisoner.'" McKenzie's arrest shifted the struggle from Nome to San Francisco, where the authority of the circuit court of appeals would be tested. It also sent a signal his co-conspirators could not fail to notice. The next day, as the Valencia sailed with the prisoner aboard, the original locators moved to dissolve the October 10 injunction. Hume, counsel for the claim-jumpers and a key figure in the incident, stated in open court that he believed it incumbent on his clients "to dissolve the injunction of their own motion, or for the court to dissolve it." Judge Noyes took the hint and so ordered.^[27] The damage had been done, however, and this last-ditch effort to comply with Ninth

Circuit orders would be met with the reprobation it deserved. The court dealt with Noyes in due course; its first task was to handle the McKenzie matter.

The proceedings began on November 7, 1900, before United States Commissioner E. H. Heacock. Heacock's duties as commissioner were generally akin to those of a justice of the peace or magistrate: he had the authority to issue search warrants and to hold preliminary hearings on criminal matters.^[28] Because the complicated web of events in Nome required the taking of testimony, the circuit court of appeals deputed Heacock to serve as a kind of trier of fact in McKenzie's contempt proceedings. Heacock's permissive conduct of the trial raised numerous objections from McKenzie's distinguished legal team, which included Frank Kellogg of St. Paul, Milton S. Gunn, and ex-Congressman Thomas J. Geary, as well as R. B. Beeman of the Nome law firm McKenzie had shanghaied. The commissioner followed "his usual procedure of allowing the witness to answer all the questions, whether objected to or not, and leave to Judge Morrow the task of striking out or allowing the answers to remain in the record." This procedure enabled the court to elicit all the facts, particularly under the intense and skillful questioning of E. S. Pillsbury, whom the court appointed special prosecutor. A famed San Francisco attorney and leader of one of its most prominent firms, Pillsbury carried out his role with zeal and the aid of the original locators' lawyers, including W. H. Metson from Nome, J. C. Campbell, and the firm of Page, McCutchen, Harding and Knight. Morrow's assignment to the case, as the judge who would review the evidence prior to its consideration by the full Ninth Circuit panel of himself, Gilbert, and Ross, was perhaps as much a function of his keeping chambers in San Francisco as of his being the junior member of the court. He was also a very experienced trial judge.^[29]

The evidentiary phase of the contempt trial took several weeks and preparation for oral argument and consideration of the case several more. When the court decided the case on February 11, 1901, it was in a difficult position. The court had compiled an extensive record of illegality by an officer of the court who was also one of the most powerful political bosses west of the Mississippi. McKenzie had a legion of supporters from Capitol Hill to the White House. At the same time, the miners in Nome were angry beyond description at what McKenzie had done. His arrest by the marshals may well have prevented a lynching.^[30] Whereas McKenzie's political allies in Washington undoubtedly would have applauded leniency by the court, the Nome miners wanted a harsh

penalty. And these were merely the parochial political considerations that clouded the judicial environment. In addition, the court's handling of Noyes and other participants in the scheme would shape larger issues of development and of respect for the judiciary.

Erskine Ross's opinion for the court downplayed the grander themes. But by carefully analyzing the narrow legal issues involved, the court rendered a decision with far-reaching significance. Before the court proceeded to the merits, it considered whether the defendants could appeal from the order appointing the receiver. Noyes had denied a right of appeal on the ground that receivership orders were not included in the Alaska Civil Code provision pertaining to interlocutory appeals. Ross chose not to dispute this characterization of the law, which Noyes probably construed correctly. Instead, he cleverly reasoned that Noyes's decision was a "final judgment" appealable under the general provision governing appeals of district court rulings: "[A]n order by which a placer mining claim, whose proper preservation in no respect requires it, is taken from one who is in the actual possession thereof, and turned over to a receiver, with instructions to extract from it its only value, is, in effect, a final decree, and appealable as such; for its entire value may be thus destroyed by improper working or extravagant management, or by the extraction of all its mineral, while he from whom it is taken, and who asserts a right to it, may prefer to work the claim to a limited extent only, or in a particular manner, or not at all." The restrictiveness of this elaborate holding indicated that the court devised the rule solely for this case. With a candor that reflected many of his judicial opinions, Ross conceded that authority for this position was difficult to find: "Surely, the authority, by whatever name called, under which such a result may be wrought, is, in effect, a final judgment."^[31]

The court next considered whether a single judge of the circuit court of appeals could grant a writ of supersedeas. This issue posed no great difficulty, because section 11 of the Evarts Act provided that "any judge of the circuit courts of appeals, in respect of cases brought or to be brought to that court, shall have the same powers and duties as to the allowance of appeals or writs of error, and the conditions of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States respectively." In its first case construing the Evarts Act, the Supreme Court had upheld the authority of a justice to grant a writ of supersedeas under this provision. The same principle applied to circuit judges.^[32]

On the merits, the court rejected McKenzie's claim of "sincerity" in refusing to obey the supersedeas writs. McKenzie's conduct, the court concluded, "so far from impressing us with the sincerity of the pretension that his refusal to obey the writs issued out of this court was based upon the advice of his counsel that they were void, satisfy us that it was intentional and deliberate." The "grossly illegal proceedings initiated almost as soon as Judge Noyes and McKenzie had set foot on Alaskan territory at Nome . . . may be safely and fortunately said to have no parallel in the jurisprudence of this country." Accordingly, the court sentenced him to one year's imprisonment in California's Alameda County jail. McKenzie immediately filed a writ of habeas corpus in the Supreme Court. The Ninth Circuit had rendered its decision on February 11, 1901. The Supreme Court heard argument on February 26 and handed down its decision on March 25, 1901—speedy review for an influential politician. For this result, though, McKenzie undoubtedly would have preferred to wait. The Court rejected his application for a writ and upheld the Ninth Circuit's ruling on all grounds. In a short opinion by Chief Justice Fuller, the Court held that the Ninth Circuit had properly invoked jurisdiction and exercised its power without abuse.^[33]

Proceedings against Noyes and other members of the Nome gang were held in abeyance while the Supreme Court decided McKenzie's fate; a reversal would effectively terminate this corollary litigation. Other alleged co-conspirators included McKenzie's attorney Thomas Geary, United States Attorney Joseph K. Wood, and a Department of Justice attorney, C. A. S. Frost. Back in Nome, Noyes and Wood continued to hold office throughout the winter of 1901, although the judge did little to dent the backlog of cases that had built up over the past two years. On May 25, 1901, the momentum accelerating toward a juridical resolution of the controversy took a curious political turn when President McKinley commuted McKenzie's term to the time he had served, a little more than three months. The ostensible reason for the pardon was McKenzie's deteriorating health. The press reported that the prisoner was "too weak to leave the jail," but one historian has written that "McKenzie's debility did not keep him from sprinting from the jail door to the train station or from continuing to exercise his political power for twenty more years before he died." Health issues aside, the pardon underscored the political influences still at play. Meanwhile, the Ninth Circuit cited Noyes for contempt, and the Justice Department suspended him from further work pending the outcome of the case and assigned his

docket to the very able and upright James Wickersham, the district judge for Division No. 3.^[34]

Winter's end opened access to Nome, and Noyes received the court's contempt citation on July 5, 1901. But he still held some hope that powerful political allies would find a way to transfer the investigation from San Francisco to Washington, where he would stand a better chance of evading punishment. Noyes traveled to Minnesota and to Washington, presumably to lobby for himself, before arriving in San Francisco in October for the contempt proceedings, which followed the same format as the McKenzie case. Commissioner Heacock presided at the evidentiary phase, with Pillsbury again serving, for no fee, as the court's special counsel.^[35] After taking several thousand pages of testimony, the court rendered its decision on January 6, 1902.

The court charged Noyes with contempt for refusing to enforce the supersedeas writs ordering McKenzie to relinquish the gold dust taken from the Anvil Creek claims. Noyes alleged in defense that he believed that all matters pertaining to the receivership had passed beyond his control. Writing for the court, Judge William B. Gilbert suspected otherwise. Although it expressed no official opinion on the existence of a conspiracy, the court left little doubt about its view: "Much of [the evidence] tends strongly to show the existence of a criminal conspiracy between some of these respondents and McKenzie and others to use the court and its process for their private gain, and to unlawfully deprive the owners of mines who were in possession thereof of their property under the forms of law." The taint of conspiracy colored the proceedings; and the court seemed intent on punishing other misconduct under its authority to discipline contempt. Gilbert acknowledged as much when he stated that "[r]eference to the evidence of their misconduct will be made only for the purpose of finding the animus which actuated them in the commission of the acts with which they stand charged." This approach guided the court's summary of Judge Noyes's offense, which focused more on the squalid deeds of the Nome ring in stealing gold than on the specific actions that justified a contempt conviction. Indeed, much of Gilbert's rendition of the facts bore little on the contempt charge, and he included elaborate dicta to expose other schemes by Noyes and McKenzie.^[36]

Framing the contempt conviction in these terms may have been unnecessary for deciding the narrow legal issue presented by the case, but it served a useful function. By including the full scope of Noyes's wrongdoing in its opinion the court insulated itself from attack by Washington

politicians who were sympathetic to McKenzie and Noyes. In this politically charged litigation, the opinion itself was the most logical forum for the court to anticipate and answer its Capitol Hill critics. At the same time, the opinion reinforced the position of those Justice Department officials who sought to punish Noyes, Wood, and others. The court resoundingly adjudged Noyes guilty of contempt, but the judges disagreed on the appropriate punishment. Gilbert and Morrow fixed the penalty at a fine of $1,000. Ross, however, urged that Noyes be sentenced to eighteen months' imprisonment. Neither Gilbert nor Morrow believed that the Ninth Circuit had authority to impose this sentence, which would constitute a "removal" from office.^[37] Accordingly, they entrusted such action to the Executive Branch.

The court also decided contempt charges brought against Thomas J. Geary, McKenzie's lawyer in Nome. A decade earlier Geary had written the infamous 1892 Chinese Exclusion Act. A well-known member of the San Francisco bar, he now persuaded the court that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Geary testified that he "never at any time advised McKenzie to disobey the writs." He sincerely believed that the orders appointing McKenzie receiver were not appealable and that the writs themselves did not require surrender of the gold dust. Geary testified that he did not directly advise McKenzie on the appropriate course of action. Uncertain as to the proof of contempt, therefore, the court dismissed the charge against him.^[38]

The other officers of the court were not so fortunate. United States Attorney Joseph K. Wood, who first arrived in Nome with McKenzie and Noyes and who, at McKenzie's instigation, became a silent member of Hubbard, Beeman and Hume, was also charged with contempt of court for his actions regarding the enforcement of the supersedeas writs issued to McKenzie. The charge stemmed from Wood's response to the marshals' demand for the bank valut keys where McKenzie had deposited the gold dust. McKenzie told the marshals he had given the keys to Wood. To United States Marshal Shelley Monckton's request that Wood hand over the keys, Wood allegedly responded: "'Do you understand I have the keys to those boxes? Understand nothing; I don't care what you understand.'" After Monckton made a formal demand for the keys, Wood simply said, "'See you later'" and left. For his conduct in the incident, Wood received a sentence of four months' imprisonment in the Alameda County jail.^[39]

The last defendant was C. A. S. Frost, an attorney deployed by the Justice Department as a special examiner to advise the clerk and the

marshal of the fledgling Alaska district court regarding their duties and accounts. Frost was a less conspicuous figure in the conspiracy. He had served as special examiner to the court until September 15, 1900, when he resigned to become assistant U.S. attorney under Wood, after Hume resigned that post. After seven months, on April 15, 1901, he stepped down, this time to become Noyes's private secretary. Frost's offenses included tampering with names submitted for jury duty and assisting in the contempts of McKenzie and Noyes. In its final act concerning the Nome scandal, the court sentenced him to twelve months' imprisonment in the Alameda County jail.^[40]

IV. Consequences

The intrigue at Anvil Creek was more than an exciting incident that provided the plot for Rex Beach's best-selling novel and for films starring Gary Cooper, John Wayne, Marlene Dietrich, Randolph Scott, and Anne Baxter.^[41] The episode threatened to upset order not only at the fledgling Nome camp but also at mining sites elsewhere in Alaska and the continental West. Unchecked, the insubordination by district court officials would have posed a serious challenge to the Ninth Circuit's authority as the most powerful federal court in these states except the Supreme Court. At a different level, the episode imperiled the court's independence, forcing its judges to rule on narrow legal issues in a politically charged environment. In these circumstances, the court's handling of the incident had significance far beyond the narrow parameters of the contempt cases themselves.

In Nome, the immediate effects of the Ninth Circuit's action were great. Mining activity had ceased during the year and a half between the arrival of Noyes and McKenzie in mid-1900 and the contempt conviction of the judge in early 1902. Distrust of the judiciary dried up capital investment in mining development and construction. Because the stakes were so great, investors' hesitation to commit financial resources was understandable. Between 1898 and 1906, more than $37 million in gold was produced from the Seward Peninsula. It is impossible to say how much higher this figure would have been if the miners had trusted the local judicial process during the McKenzie-Noyes affair: a contemporary report placed the estimated value of gold in the region at $325 million. As the population of the Nome area mushroomed in the summer of 1900 from 3,000 to 20,000, thousands of inexperienced miners suffered significant deprivation from this chilling effect on normal economic activity.

Miners closed down their operations and waited, fearful that claim-jumpers or court-appointed receivers would steal their ore. By November of 1900, squatters and jumpers had filed more than five hundred suits, for which Noyes had appointed more than one hundred receivers, usually friends of McKenzie or McKenzie himself. The institution of these suits, the struggle to rescind receivership orders, and Noyes's own dilatoriness in attending to his docket meant severe hardship even for the original locators, who had to pay the high cost of living and expensive litigation without confidence that they could legally work their claims. The Ninth Circuit's firm handling of the McKenzie ring and Judge Wickersham's able stewardship of the district court restored the Nome miners' faith in the judicial process.^[42]

That message gained greater significance when vast quantities of gold were discovered in 1902 in the Tanana Valley, where in ensuing years the town of Fairbanks grew up. Unlike the situation in Nome under Noyes's tenure, in Tanana Valley property disputes involving mining claims were litigated in the district court and appealed to the Ninth Circuit as a matter of routine. In the first decade of this century the circuit court of appeals considered numerous cases on a wide range of issues. As gold production increased in the Fairbanks area, so did appeals to the Ninth Circuit. Indeed, nearly one-fifth of the mining cases decided by the Ninth Circuit between 1900 and 1910 originated in Alaska, evidence of the extent to which prospectors placed their faith in dispute resolution by judicial process rather than self-help.^[43] Many of these cases raised lingering issues from the Nome region that remained unresolved until after the Noyes scandal was put down.^[44] The property disputes that were the stuff of high drama in Nome became rather more mundane under the Ninth Circuit's jurisprudence. Mining litigants steadily gained confidence that the appellate court would reverse if the district court had erred and that disagreements among the Ninth Circuit judges related to the uncertainty of law and not to furtive scheming.^[45]

The Ninth Circuit came under heavy fire for its actions in the Nome episode. Miners viewed the punishment meted out as too light. After the Ninth Circuit convicted Noyes of contempt, the grand jury in Nome wanted to indict the judge for criminal offenses. Neither the Justice Department nor Judge Wickersham was anxious for this development to occur, and both persuaded local authorities that the disgrace of a contempt conviction was punishment enough. Others, too, believed that the punishments amounted merely to a slap on the wrist. One respected historian has characterized the $1,000 fine of Noyes and four months'

imprisonment for Wood in very unflattering terms: "Such light penalties indicated that Washington, D.C. was still looking after the Spoilers." This conclusion may not be wholly fair. The context of the ruling was a contempt proceeding, and although a court had discretion, prison terms for contempt were typically not severe. As Ross stated in his separate opinion, "For those shocking offenses it is apparent that no punishment that can be lawfully imposed in a contempt proceeding is adequate." He thought that Noyes, Frost, and Wood should be imprisoned for eighteen, fifteen, and ten months respectively. Noyes avoided a jail term because Morrow and Gilbert reasonably believed that the judiciary could not "remove" a colleague by ordering imprisonment for contempt.^[46]

After the court rendered its decisions, some politicians in Washington accused the Ninth Circuit judges of wrongdoing for imposing penalties on the Nome ring. Loose talk posited that Lane's people had bribed the court. Characterizing the penalties as "monstrous," Senator Porter J. McCumber stated on the Senate floor that Gilbert, Ross, and Morrow "are intensely biased; . . . they are prejudiced beyond all reason and all sense." To this calumny Senator Benjamin R. Tillman, a farmer from South Carolina, responded that McCumber "owes it to himself to quit attacking this court or prove something against it otherwise than by mere assertion." A charge of corruption against the court seemed similarly ill-advised. After Morrow had issued the writs of supersedeas, Noyes himself allegedly declared: "'Our company made a great mistake not to have had someone to look after the San Francisco end of this litigation; if it had these writs would never have been issued.'"^[47]

As the senators debated the Ninth Circuit proceedings, the Justice Department wrapped up its investigation, which culminated in Noyes's removal. Led by Attorney General Philander C. Knox, the department's probe went over much the same ground as the Ninth Circuit's proceedings and received a presidential nudge, if not an outright order, in February of 1902. David H. Jarvis, the collector of customs at Nome and a confidant of McKinley's successor, wrote to President Theodore Roosevelt in early 1902 that only "the immediate removal of everybody connected with this conspiracy will give the people confidence in the good intentions of the administration, and restore confidence and stability to the business of that part of Alaska." Roosevelt scrawled at the bottom of this memorandum, "Atty Gen'l, This is from Jarvis, who certainly knows Alaska. TR." Knox got the message. In February, 1902, he conducted a hearing to which he invited E. S. Pillsbury to testify.

Pillsbury, who had served the court without pay for three months, saw the Justice Department investigation as an ill-conceived review of the Ninth Circuit's action. Explaining his refusal to appear at Knox's hearing, the venerable San Francisco lawyer stated, "I do not consider that the Court has need of vindication from any source."^[48]

As mining activity continued in Alaska and other states in the circuit during the early part of the century, the court's handling of the Anvil Creek incident served as a reminder of the importance of law and orderly process. No one could doubt that the court stood resolutely against similar lawlessness in its other tribunals throughout the circuit. The court would treat contempt of its orders with firmness and dispatch. This message spread throughout the West at a time when the court's authority was still uncertain. Although by this time it had already decided seven hundred cases, it had heard few appeals from the territories of Alaska, Arizona, and Hawaii. The far-flung Ninth Circuit demanded a powerful, if not an omnipresent, force for law and order. The court's action in the Anvil Creek incident signaled, not only to the frontier miners of Alaska but to the settlers of Arizona, the farmers in Hawaii, and all persons throughout the circuit, that it would handle disputes by process of law without succumbing to corruption or political pressure.