Table Of ContentUNLV Theses, Dissertations, Professional Papers, and Capstones
12-1-2017
The Transformation of American Federalism, 1848-1912
Lance Sorenson
University of Nevada, Las Vegas,
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 .................................................................................................... 105
Chapter 5: The Ordering of the West ........................................................................................... 131
Chapter 6: Conditions of Statehood in the West .......................................................................... 177
Part III: Landlord of the West ........................................................................................................... 202
Chapter 7: Federal Real Estate Agent ........................................................................................... 207
Chapter 8: The Ad Hoc Conservation Period ............................................................................... 223
Chapter 9: Systematic Conservation and Preservation ................................................................. 244
Conclusion: How A New Federalism Congealed in the West .......................................................... 275
Appendix A: ....................................................................................................................................... 287
Appendix B: ....................................................................................................................................... 288
Bibliography ...................................................................................................................................... 289
Curriculum Vitae ............................................................................................................................... 314
vii
LIST OF FIGURES
Figure 1 – Profile of Johnson Sides in the San Francisco Call ...........................................................25
Figure 2 – “Where Witchcraft Reigns” ..............................................................................................57
Figure 3 – A Map of the United States Agreeable to the Peace of 1783 ..........................................105
Figure 4 – Map of Louisiana Territory, 1804 ...................................................................................117
Figure 5 – Map of Mexico, 1847 ......................................................................................................131
Figure 6 – Cattle Catcher on Locomotive .........................................................................................153
Figure 7 – “Wives Wanted” ..............................................................................................................172
Figure 8 – Percentage of Federal Land in Each State .......................................................................206
Figure 9 – Bridal Veil Falls, Yosemite, Carleton Watkins, 1861 .....................................................227
Figure 10 – Great Falls of the Yellowstone River, 1871 ..................................................................237
Figure 11 – Effects of Deforestation, 1915 ......................................................................................243
Figure 12 – Theodore Roosevelt and John Muir, Yosemite, 1903 ...................................................257
Figure 13 – State Trust Lands in the West .......................................................................................270
viii
INTRODUCTION
On October 31, 1837, the steamboat Monmouth slowly powered north on the cold waters of
the Mississippi River carrying her cargo. The consignment was unique, but not unusual. The
United States Army had contracted with the owners of the Monmouth to assist in removing
Cherokee, Creek and other Native Americans from the Southeast to what is now Oklahoma. On
that late autumn night, the overloaded boat carried 700 Creek Indians who, according to the
Army’s plan, were supposed to disembark at a point further upriver and then resume their forced
march west to “Indian Country” – federal land held in theoretical trust for Native Americans. The
Monmouth also carried a small load of whiskey, and the crew managed to lighten the barrels during
the journey. Sometime during the dark hours, the Monmouth suddenly and violently collided with
another boat steaming downriver. The Monmouth split apart and threw most of its passengers into
the cold river. The front section of the boat remained afloat and those fortunate enough to hold on
kept their heads above water. The rest of the group drowned. Of the 700 Native Americans on
board the Monmouth, 300 lost their lives to the river that night, all while in the custody of the
1
United States.
Steamboats on the Mississippi River such as the Monmouth also carried a different form of
human cargo in the antebellum period – slaves. New Orleans was a terminus point in the
transatlantic slave trade and, upon crossing the Atlantic, slaves might find themselves forced to
1
For an account of the Monmouth disaster, see Grant Foreman, Indian Removal: the Emigration of
the Five Civilized Tribes of Indians (Norman: University of Oklahoma Press, 1953), 187. The phrase
“Indian Country” effectively became a legal term of art. The first Congress of the United States passed the
“Non-Intercourse Act” disallowing the private purchase of tribal lands without federal government
approval. Thus, the United States asserted plenary power over tribal lands and planted the seeds for the
federal trust doctrine – the concept that the United States owns the underlying title to native lands but must
manage the land for the benefit of the tribes. The national government designated Trans-Mississippi “Indian
Country” as a safe haven for removed tribes. For a discussion of “Indian Country” and an argument that its
promises to tribes were always illusory, see William Unrau, The Rise and Fall of Indian Country, 1825-
1855 (Lawrence: University of Kansas Press, 2007).
1
