1. Carlson, "The Discovery of Gold at Nome, Alaska," in Alaska and Its History 353-54, 356 (M. Sherwood ed. 1967). See Tornanses v. Melsing , 106 F. 775 (9th Cir. 1901); Anderson v. Comptois , 108 F. 985 (9th Cir. 1901). [BACK]

2. See generally Morrow, "The Spoilers," 4 Calif. L. Rev. 89, 92-95 (1916). San Francisco Call , Sept. 14, 1899, at 2, col. 4. Carlson, supra , note 1, at 364; Tornanses v. Melsing , 106 F. 775, 780 (9th Cir. 1901). The notice of location in effect told anyone interested that the ground in question had already been claimed. According to one turn-of-the-century authority on mining law, the essential steps for a notice of location were: (1) a notice posted at the site or obvious from actual possession; and (2) the marking of the boundaries on the ground (G. Costigan, Handbook on American Mining Law 247 [1908]). Act of May 10, 1872, ch. 152, § 1, 17 Stat. 91, 91. Lindeberg's citizenship declaration was not effective under the laws of the United States because it should have been made before a court of record, and the commissioner's court was not a court of record for that purpose ( see Morrow, supra , at 95). [BACK]

3. W. Hunt, North of 53° 98 (1974); Carlson, supra note 1, at 364-68; Morrow, supra note 2, at 96. After initially staking the area incorrectly by claiming the amount permissible for lode or quartz mines, the original locators returned to stake the legal limit of twenty acres per placer claim (Carlson, supra , at 365 n.42). Of the three "lucky Swedes," Brynteson located five claims for himself and six for others; Lindeberg, eight for himself and eleven for others; and Lindblom, thirty for himself and thirty for others ( id. at 374-75). The legal authority for these filings by power of attorney was sanctioned in the Act of June 6, 1900, ch. 786, § 16, 31 Stat. 321, 328. [BACK]

4. The laws of the United States made applicable to Alaska were clear on the point that aliens could hold mining claims. The Act of May 17, 1884, ch. 53, § 7, 23 Stat. 24, 25-26, provided that the general laws of Oregon were to apply as the laws of Alaska, and the general laws of Oregon in turn provided that an alien could acquire and hold land as if he were a native citizen of Oregon or the United States ( see 3 Lord's Or. Laws §§ 7172-73 [1910], tracing earlier laws). In addition, the Act of Congress on Mar. 2, 1897, ch. 363, § 2, 29 Stat. 618, 618, specifically exempted alien miners and their claims from its general prohibition on aliens holding ownership of lands in territories. Under the laws of the United States made applicable at the time, therefore, the action of the jump-stakers was without any authority. (W. Hunt, supra note 3, at 98-99.) [BACK]

6. With apologies to William W. Morrow (Morrow, supra note 2, at 100: "Fortunately, the chase of the wild goose in this case turned out to be a financial success"). [BACK]

7. W. Hunt, Distant Justice 104-5 (1987); Morrow, supra note 2, at 100. [BACK]

8. Naske, "The Shaky Beginnings of Alaska's Judicial System," 1 W. Legal Hist. 163, *199 (1988). 33 Cong. Rec. 3307 (1900). Naske, supra , at 202. 33 Cong. Rec. 3739-40 (1900). Manuel v. Wulff , 152 U.S. 505 (1894). 33 Cong. Rec. 3926-30 (1900). [BACK]

9. W. Hunt, supra note 7, at 107. 33 Cong. Rec. *3929 (1900). Act of June 6, 1900, ch. 786, § 4, 31 Stat. 321, 322-23. [BACK]

10. U.S. Const., art. I, *§ 3. E. Surrency, History of the Federal Courts 350-51 (1987). [BACK]

11. United States Census Office, Twelfth Census of the United States: Part I, Population xix (1901). E. Gruening, The State of Alaska *103 (1954). C. Naske and H. Slotnick, Alaska: A History of the 49th State 80 (2d ed. 1987). If either Noyes or McKenzie left any account of their version of the events in Nome during their residencies there, historians have failed thus far to find them. Two scholars of Alaskan history who have studied this episode in depth conclude that the judge and the receiver were engaged in a conspiracy ( see W. Hunt, supra note 7, at 104; Naske, supra note 8, at 198-210). [BACK]

12. See Tornanses , 106 F. at 777. Since Nome did not have a natural port, many vessels stayed as far as a mile offshore and a skiff or other small boat came out from shore to disembark passengers. Whether Noyes stayed on the boat as part of the conspiracy that was about to unfold or whether there was some other

reason for not joining the other passengers in disembarking on July 19 is still a mystery. Act of June 6, 1900, ch. 786, § 4, 31 Stat. 321, 323. In re Noyes , 121 F. 209, *213 (9th Cir. 1902). McKenzie also "advised" them to transfer a one-fourth interest in the business of the firm to Joseph K. Wood, the United States attorney, and to make Wood a silent partner in their law firm. If the lawyers agreed to these terms, McKenzie would see to it that Hume would become Wood's deputy. ( id. ). The cases in which the firm had a contingent interest were: Rodgers v. Kjellman (Claim No. 2 below Discovery on Anvil Creek); Comptois v. Anderson (Claim No. 3 above Discovery); Melsing v. Tornanses (Claim No. 10 above Discovery); and Webster v. Nakkeli (Claim on Nakkeli Gulch, a tributary to Anvil Creek). Similar action was undertaken in a new suit, Chipps v. Lindeberg , which involved the Discovery Claim on Anvil Creek ( id. at 214). [BACK]

13. G. Costigan, supra note 2, at 520. [BACK]

14. In re Noyes , 121 F. at 214. [BACK]

15. In re Noyes , 121 F. at 215; Morrow, supra note 2, at 104-5. [BACK]

16. In re Noyes , 121 F. at *216. Metson gave this testimony at the contempt hearing, which the press covered in lurid detail. See San Francisco Call , Oct. 24, 1901, at 5, col. 4. McKenzie did relinquish some of these items six weeks later on the advice of counsel (121 F. at 216). [BACK]

17. In re Noyes , 121 F. at 215. When these revelations became public at the contempt trial of McKenzie, they naturally caused an uproar ( see San Francisco Call , Nov. 13, 1900, at 4, col. 5; id. , Nov. 14, 1900, at 3, col. 3). [BACK]

18. The firm of Hubbard, Beeman and Hume had instituted four lawsuits. One was an ordinary ejectment action, which did not plead a single allegation in equity that would entitle the plaintiffs to a receivership appointment. Another suit requested an injunction and the appointment of a receiver but was based on an unverified bill of complaint. All of the complaints alleged on their face that plaintiffs were United States citizens but that the defendants/original locators were aliens and not entitled to own a mining claim ( see Tornanses , 106 F. at 778-80). The author of the court's opinion in Tornanses , Erskine Ross, thoroughly understood the necessary elements for appointment of a receiver. In an earlier decision for the circuit court, Ross had explained that a receiver was warranted when two competing parties claimed the same land and statutory law required certain work to be done on the land, for instance, for mining claims on public land. The appointment of a receiver was justified in such an instance to perform the necessary work while preserving the property's value for the prevailing party. Nevada Sierra Oil Co. v. Home Oil Co. , 98 F. 673, 674 (C.C.S.D. Cal. 1899, cited by G. Costigan, Handbook on American Mining Law 520 n.39 [1908]). [BACK]

19. See In re Noyes , 121 F. at 210, 219; Morrow, supra note 2, at 109; San Francisco Call , Jan. 17, 1901, at 7, col. 5. [BACK]

20. Tornanses , 106 F. at 782-83. The procedural posture of the case is not entirely clear. Although the "right to take an appeal is an absolute right," wrote one turn-of-the-century authority on federal jurisdiction, "it has been held by the Supreme Court—for reasons which are not fully explained, and which I must say I do not myself fully understand—than an appeal must be allowed by a judge"

(B. Curtis, Jurisdiction, Practice, and Peculiar Jurisdiction of the Courts of the United States 99 [H. Merwin ed. 1896]). [BACK]

21. In re Noyes , 121 F. at 216; Morrow, supra note 2, at 108-9. Tornanses , 106 F. at *783. [BACK]

22. In re Noyes , 121 F. at *216-17. It is unclear whose testimony the court is quoting on the first point. Transcript of Proceedings and Testimony at *529, In re Noyes , Nos. 701, 702, 703, and 704, Records of U.S. Court of Appeals for the Ninth Circuit, available at University of California, Hastings College of the Law, San Francisco (hereinafter Transcript). San Francisco Call , Oct. 22, 1901, at 3, col. 4. [BACK]

23. See W. Hunt, supra note 3, at 125; San Francisco Call , Feb. 12, 1901, at 1, col. 5. [BACK]

24. Transcript, supra note 22, at *547. In re Noyes , 121 F. *219 (quoting Arthur H. Noyes to Major John J. Van Orsdale, Sept. 15, 1900); See also id. at 218. [BACK]

25. See Tornanses , 106 F. at 783; In re Noyes , 121 F. at 220-21. It is unclear when the marshals arrived, but they must have reached Nome only shortly before they arrested McKenzie. [BACK]

26. Morrow, supra note 2, at 109. [BACK]

27. San Francisco Call , Oct. 28, 1900, at *23, col. 2 (quoting the Nome Chronicle ). In re Noyes , 121 F. at *221. [BACK]

28. San Francisco Call , Nov. 9, 1900, at 12, col. 3. Although the functions of the commissioner date from the Judiciary Act of 1789, 1 Stat. 91, the title did not enter the lexicon of the federal courts until the Act of Mar. 1, 1817, 3 Stat. 350. Heacock himself acted under the authority of the Commissioners Act of 1896, 29 Stat. 140, 184. For a general background on these officers of the court, see United States v. Maresca , 266 F. 713, 719-21 (S.D.N.Y. 1920, per Hough, J., describing history of commissioners); E. Surrency, History of the Federal Courts 361-68 (1987). [BACK]

29. San Francisco Call , Nov. 11, 1900, at *31, col. 5; see also id. , Nov. 8, 1900, at 12, col. 3. There is no record of why Morrow received this assignment, but presumably Judge Gilbert, as senior judge, had such assigning authority. [BACK]

30. Tornanses , 106 F. at *783. On McKenzie's political influence, see Naske, supra note 8, at 199-208; on the miners' view, see W. Hunt, supra note 3, at 125; San Francisco Call , Oct. 28, 1900, at 23, col. 2. [BACK]

31. The case was styled Tornanses v. Melsing , for one of the suits in which McKenzie had been appointed receiver (106 F. at 775, 784, *785-86). In a later appeal involving a Montana mine, Gilbert would uphold a similar appointment of a receiver, over Judge Ross's vigorous dissent ( see Heinze v. Butte and Boston Consol. Mining Co. , 126 F. 1 [9th Cir. 1903]). For more on this case see infra pp. 79-97. Tornanses , 106 F. at *786. [BACK]

32. Act of Mar. 3, 1891, ch. 517, § 11, 36 Stat. 826, *829. In re Claasen , 140 U.S. 200 (1891). This case is discussed at some length in Foster, "Recent Decisions Under the Evarts Act," 1 Yale L.J. 95 (1891). Tornanses , 106 F. at 787, aff'd, In re McKenzie , 180 U.S. 536, 550 (1901). [BACK]

33. Tornanses , 106 F. at *789, 790. In re McKenzie , 180 U.S. 536, 551 (1901). [BACK]

34. San Francisco Call , May 25, 1901, at 16, col. 2; W. Hunt, supra note 7, at 114-15; W. Hunt, supra note 3, at 132 (describing a docket "jammed with hundreds of claim disputes that Noyes has never got around to hearing"). Compare San Francisco Call , May 26, 1901, at *27, col. 5, with W. Hunt, supra note 7, at *114. McKenzie's first bid for a pardon failed, apparently when the Justice Department learned that he still had not returned all the gold he had stolen. After more of the loot had surfaced, Attorney General Philander C. Knox recommended the pardon ( see Morrow, supra note 2, at 110; 1901 Att'y Gen. Ann. Rep. 294). San Francisco Call , May 25, 1901, at 16, col. 2. In September, after Noyes left Nome, Attorney General Knox sent Judge James Wickersham of Alaska Division No. 3 to handle the huge backlog of cases remaining in Division No. 2. [BACK]

35. W. Hunt, supra note 7, at 115. For a report of the first day of the hearing, see San Francisco Call , Oct. 18, 1901, at 14, col. 3. [BACK]

36. In re Noyes , 121 F. at 211, *212, *213, 221-22. For instance, shortly after they arrived at Nome two of the original locators of the nearby Topkuk Mine approached Noyes and complained of certain trespasses. The judge referred these gentlemen to his private secretary with the observation that the secretary was about to resign and enter the practice of law. Whether Noyes received a kickback is unclear, but his aide insisted on a one-half interest in their mine and promised to secure it for them within twenty-four hours. When the locators balked at this exorbitant demand, Noyes appointed a man named Cameron to act as receiver of the mining property. Like McKenzie, Cameron operated the mine extensively and extracted somewhere between $100,000 and $200,000 worth of gold dust, on expenses of less than $35,000. Although the long rendition of these facts bore no direct relation to the contempt charge in the Anvil Creek Gilbert justified his explication because they "throw light upon the transaction, to show the animus of Judge Noyes in those cases, and to aid the court to interpret the nature of his conduct in the matters upon which contempt is charged" ( In re Noyes , 121 F. at 223). [BACK]

37. In re Noyes , 121 F. at 225 (sentencing Noyes to a fine of $1,000); id. at 232 (Ross, J., concurring, arguing that Noyes should be sentenced to eighteen months' imprisonment); id. at 332-33 (Morrow, J., concurring, agreeing with Judge Gilbert that because Noyes held a judicial position his sentence should be a fine of $1,000). It seems unlikely that Gilbert, Ross, and Morrow would actively lobby Congress after being attacked. Gilbert and Ross were distinctly unpolitical; Morrow might have engaged in sub rosa communications with political friends in Washington, but I have been unable to uncover any such records. [BACK]

38. In re Noyes , 121 F. at 226. [BACK]

39. In re Noyes , 121 F. at *227 (quoting testimony of Marshal George H. Burnham). Id. at 228. [BACK]

40. In re Noyes , 121 F. at 231. Noyes did not appeal. See W. Hunt, supra note 3, at 127. In addition to the two principal cases of Tornanses v. Melsing and In re Noyes , the court decided other claims involving Anvil Creek. These included: Anderson v. Comptois , 109 F. 971 (9th Cir. 1901); Lindeberg v. Chipps , 108 F. 988 (9th Cir. 1901); Lindeberg v. Requa , 108 F. 988 (9th Cir. 1901). See also Kjellman v. Rodgers , 109 F. 1061 (9th Cir. 1901). [BACK]

41. R. Beach, The Spoilers (1905); The Spoilers (1930, with Gary Cooper); The Spoilers (1942, with John Wayne, Marlene Dietrich, and Randolph Scott); The Spoilers (1955, with Anne Baxter). W. Hunt, supra note 7, at 122. [BACK]

42. E. Harrison, Nome and Seward Peninsula 69 (1905); C. Hulley, Alaska: Past and Present 269 (1958); D. Estes, ed., Our Northern Domain 89 (D. Estes ed. 1910); Helms and Mangusso, "The Nome Gold Conspiracy," 73 Pac. Northwest Q. 10, 12 (1982). C. Naske, An Interpretive History of Alaskan Statehood 18 (1973). San Francisco Call , Nov. 6, 1900, at 14, col. 6. [BACK]

43. See infra , Appendix. In this 1900-1910 period, at least 12 percent of the court's docket consisted of cases involving mining companies, and approximately 17 percent of the court's cases overall originated in Alaska. [BACK]

44. See , e.g., Engelstad v. Dufresne , 116 F. 582 (9th Cir. 1902); Walton v. Wild Goose Mining and Trading Co. , 123 F. 209 (9th Cir. 1903); McKay v. Neussler , 148 F. 86 (9th Cir. 1906). [BACK]

45. See , e.g., Charlton v. Kelly , 156 F. 433 (9th Cir. 1907, Nome ejectment action). On miners' confidence, see , e.g., Lange v. Robinson , 148 F. 799 (9th Cir. 1906, reversing and remanding for new trial); Smith v. Cascaden , 148 F. 792, 795 (9th Cir. 1906, Ross, J., dissenting). [BACK]

46. W. Hunt, supra note 3, at *126; see also id. at 134. Typically, contempt sentences ran from three to six months, except where defendants were withholding money, documents, or testimony from the court, in which case they were held until they cooperated with the court. See , e.g., In re Debs , 158 U.S. 564, 573 (1895); Pepke v. Cronan , 155 U.S. 100, 101 (1894); Anderson v. Comptois , 109 F. 971, 976 (9th Cir. 1901); In re Reese , 98 F. 984, 985 (C.C.D. Kan. 1900). In re Noyes , 121 F. at *232 (Ross, J., concurring). Because Noyes was a territorial district judge, he was subject to removal at the discretion of the president. See E. Surrency, supra note 10, at 350. [BACK]

47. 35 Cong. Rec. *1324 (1902). San Francisco Call , Nov. 6, 1900, at *14, col. 6 (quoting statement attributed to Noyes). [BACK]

48. *President's Secretary to Attorney General P. C. Knox, Feb. 6, 1902, Letter No. *4475, File No. 10,000-1900, RG 60, Department of Justice General Records, National Archives, Washington, D.C.E.S. Pillsbury to Attorney General P. C. Knox, Feb. 6, 1902, Letter No. 2358, File 10,000-1900 Records. For the record, Noyes was removed from office on February 24, 1902 (W. Hunt, supra note 7, at 120). [BACK]