During the nineteenth and twentieth centuries, Canada and the United States attempted to protect sexual morality at home by extending their power abroad. They used border surveillance to control the transnational movements of Euro-Canadians, Euro-Americans, Chinese immigrants, and Native Americans. At the same time, they developed creative ways to punish deviancy abroad by relying on an expansive understanding of the extradition process and by using race-based legislation to increase their coercive power. They deprived individuals of their intergenerational access to wealth and status through their ability to control marital recognition. Deprivation served as a powerful tool to secure conformity even beyond the explicit legal boundaries each country maintained.
Aux xixe et xxe siècles, le Canada et les États-Unis tentèrent de protéger la moralité sexuelle en leur sol en étendant leur pouvoir à l'étranger. Ils se servirent de la surveillance des frontières pour encadrer les mouvements transnationaux d'Euro-Canadiens, d'Euro-Américains, d'immigrants chinois et d'Autochtones américains. Par ailleurs, ils trouvèrent des moyens ingénieux pour punir la déviance à l'étranger en misant sur une interprétation large du processus d'extradition et en faisant appel à des mesures législatives à caractère racial afin d'accroître leur pouvoir de coercition. Ils privèrent des gens d'un accès intergénérationnel à la richesse et à un statut grâce à leur capacité d'intervenir dans la reconnaissance des mariages. La privation a puissamment contribué à assurer la conformité, même au-delà du cadre juridique explicite existant dans chaque pays.
On 21 August 1876, the Council of Chiefs at Manitowaning, Ontario, met to discuss the negative consequences of federal Indian policies on their communities. At the meeting, the Council of Chiefs complained that Indian agents had used residency requirements to strip members of the Chippewa, Ottawa, and Pottawatomie communities around Lake Huron of their access to tribal resources. The Council demanded that individuals removed from the pay lists for residing in the United States “be reinstated and if any Half Breeds have married their daughters they wished them and their families to receive annuity.”1 This complaint focused on the uncomfortable intersection of national boundaries, race, marriage, and social control. Indian agents found creative ways to extend their authority across borders in order to police movement, morality, and interaction through deprivation. Deprivation allowed them to influence marital patterns without having to rely on jail sentences or fines.2 The border complicated their efforts to police Indigenous populations but did not diminish the practical reach of their power.
Over the past two decades, numerous historical studies have focused on the logistical and social complications created by border closure efforts in Canada and the United States. Kelly Lytle Hernández, Peter Andreas, Katherine Unterman, and others have argued that police officers, private detectives, soldiers, fishery patrols, and border guards have encountered significant challenges when they tried to enforce their conception of order and justice in transnational regions.3 Borderland scholars have demonstrated that the life courses of these communities were harmed by colonial borders, which conflicted directly with Indigenous conceptions of space.4
Historians of gender, including Sarah Carter and Sheila McManus, have pushed for the inclusion of gender as a central component of migration and borderland studies and have highlighted both the legal and social proscriptions regarding families that colonial powers put in place. Properly ordered families served as benchmarks for nineteenth- and twentieth-century officials who were concerned about national cohesion and social order. This push for sexual conformity occurred in concert with broader attempts to demarcate the edges of nations. Battles over the border and sexuality reinforced, in the eyes of federal officials and social reformers, what Canada and the United States were to become and what they were not.5
While expansive, relatively little of the literature surrounding gender and borders has focused on the creative applications of power that allowed federal officers in Canada and the United States to punish sexuality beyond their jurisdictions. Controlling sexuality did not end at the edges of national space. Administrators instead pushed it out into the broader world, linking their anxieties over family to international relations through both official and unofficial channels. They expended significant effort punishing “deviants” abroad as a way of securing their reforms at home. “Deviancy” served as a rough set of religious, cultural, economic, legal, and moral ideas about behaviour that reformers and state officials categorized as nonconforming. While they often expressed these conceptions of deviancy as common sense, in practice, these ideas were never consistent, well defined, nor fully agreed upon.6
The development of rapid forms of transportation in the nineteenth century, including railroads and steamboats, expanded the ways that criminals moved between legal jurisdictions. Technological development, coupled with social upheavals resulting from war and immigration, created significant tension in each country. Social reformers and federal agents feared that these changes increased the risks to sexual morality, public health, and the proper ordering of families. They expressed particular concern toward interracial unions, adultery/non-marital cohabitation, bigamy, polygamy, divorce, illegitimate children, child stealing, and abortion, and centred their attempts to police sexuality on these acts. In response to these perceived threats, Canada and the United States developed three pathways of international control: border surveillance/guards, deprivation, and extradition. Border surveillance provided the first line of defence. Border guards prevented the entry of suspected sexual “deviants,” and customs inspectors screened cargo for sexually explicit materials and contraceptives. The length of the border nonetheless ensured that unwanted people and goods continued to enter each country. By the twentieth century, however, Canada and the United States had succeeded in transforming their shared border into a meaningful divide.
While border surveillance and border guards tried to block the importation of immorality at the border itself, federal officials relied on deprivation and creative applications of extradition proceedings to punish deviants who had moved beyond each government's immediate jurisdiction. This process occurred through different legal pathways, depending on the legal status of the community being policed. Among Indigenous communities, federal officials used provisions within the Indian Act to punish sexual immorality through delayed and indirect punishments. Federal officials limited the ability of suspected deviants to visit family and friends who still lived within the agent's jurisdiction and curtailed their access to economic opportunities that often spanned across national lines. Depriving nonconforming individuals of their tribal status or access to their families and communities took a significant financial and psychological toll, one that could outweigh the legal punishments that might be meted out for those considering returning from another land. Furthermore, Indian agents controlled which marriages the state recognized and could also strip individuals of their legal status if they left the country for extended periods of time. By controlling the pathways of inheritance, Indian agents influenced the intergenerational transfer of property and status not only for individuals but for those individuals' family members as well. This kind of coercive bookkeeping allowed Indian agents to indirectly punish interracial marriages, divorces by tribal customs, and illegitimate children, even in cases where the guilty party remained outside of the prosecuting country.
The unique legal status of Indigenous peoples in Canada and the United States limited the ways that federal administrators and police officers could transfer this kind of coercive oversight onto other groups. In order to police transnational deviancy within white communities, federal courts and agents improvised policies within the extradition system that allowed them to expand their authority to cases that did not fall strictly under the extradition provisions. These ideas did not map particularly well onto the legal system, encouraging local, state, and federal officials to bend or break the law to enforce their conception of social norms. Officers of the state accomplished this by relying on secondary charges – perjury instead of bigamy, murder instead of abortion – to build extradition proceedings into more comprehensive forms of social control. This strategy required significant effort, but it provided both Canada and the United States with opportunities to make examples of suspected criminals who exploited the legal ambiguity of transnational environments.
The varied policies that Canada and the United States used to adjudicate claims about family, immorality, criminality, and sin, beyond the legal jurisdictions they claimed, produced inconsistent results. The racial status of the defendant, the personal investment made by local agents, the crime, and the cross-border support the other country provided all impacted the ways federal officials chose to pursue their cases and the likelihood their cases would be resolved. Understandably, state actors struggled to police morality within their own jurisdictions and encountered even greater challenges when they attempted to extend their influence across national lines. Each country's desire to curtail immorality in practice encouraged its officials to make concessions in legal process. The end result was a system of social control that latched itself onto other administrative and legal systems. The federal state relied on deprivation, restricted entries and deportations, and extradition to regulate family and sexuality, often following the racialized paths already laid out in American and Canadian law and administrative practice.
The persistence and scope of these extralegal policies suggest that some of the most important work in establishing national borders as meaningful spaces occurred hundreds of miles away from the border itself in cities, courthouses, and administrative offices. Moreover, these extralegal policies demonstrate the widespread concern in both countries for not only financial crimes and violent crimes that spanned across borders but also sexual and gendered crimes. Finally, while Canada and the United States took very different approaches to policing sexuality domestically, they shared a much more unified approach to policing it across national lines, suggesting the importance of considering each country's national policies within their transnational context. Federal agents in both countries adopted flexible approaches to transnational justice that used and bent existing tools and practices to achieve what they believed to be a just end.
During the second half of the nineteenth century, moral crusaders and federal officials drafted new laws in Canada and the United States to protect Christian ideals of marital unions against the perceived threats posed by the sexual practices of Chinese immigrants, religious minorities, Indigenous peoples, and Anglo-American and Anglo-Canadian dissenters. These laws and policies did not aim for a return to a traditional or timeless conception of marriage. Rather, they attempted to promote a narrow understanding of marriage developed by the federal governments of Canada and the United States overtop existing consent-based marriage systems that followed local customs and understandings. This transition encouraged the centralization of governmental power. In the process, the federal governments of Canada and the United States began to supersede local communities and state actors as the adjudicator of family relationships.7
The power to shape which marriages received formal recognition mattered because marriage, in part, set the basis for the transmission of property (inheritance), the composition of the political body (citizenship), and each local community's ability to construct social patterns without molestation (who can marry/remarry, how extended kinship networks would operate, and so on).8 Legal understandings about family and the place of men as the heads of households also shaped the ways courts delivered punishments. In 1919, for example, Victor F. Arnold, the juvenile court judge of Cook County, Illinois, ordered Joseph Frome to administer a sound “licking” to his seventeen-year-old son James, who was accused of automotive theft. After Joseph delivered “as fine a beating as ever [Judge Arnold] saw a young husky take,” the judge noted that “what your father just did will do more to make a man of you than being sent away to a reform school.”9 For social reformers, judges, church leaders, and government officials, marriage and the proper ordering and discipline of families was more than just a personal affair: it was the bedrock of civilization and society. As Sarah Carter, Claire A. Smearman, and Nancy Cott have argued, politicians in Canada and the United States saw challenges to properly constituted marriages as challenges to democracy and their nation-building projects. Law and family intertwined to create social order.10
The role of the government in the adjudication of marriage began to change in the United States and Canada during the mid-nineteenth century. Moments of crisis and ongoing debates about how racially marginalized populations would be integrated or excluded from participation in civil society and citizenship forced politicians to reassess existing policies. While Canada and the United States aimed broadly toward the same goals, the pressures each country experienced led them to develop different approaches to controlling sexuality within their respective nations. This created two broad systems of marriage, enforcement, and divorce that existed adjacent to one another.
In the United States, the extensive casualties caused by the Civil War created a generation of women whose marriage and remarriage prospects were bleak. No longer could every woman expect to become a wife, and this undermined the legal and economic system that tied women's legal identity and personhood to their husbands. The Thirteenth Amendment's elimination of slavery in the United States increased tension over the possibility of miscegenation and created new questions about how freedmen and freedwomen, who had previously been denied recognized marriages under slavery, would be integrated into public life and the broader legal and social systems in the United States. By 1900, twenty-six states had miscegenation laws in effect, including Virginia, where the punishment for miscegenation carried a five-year prison term.11
At the same time, American assimilation campaigns against Native American communities after the Civil War linked prohibitions against polygamy with broader civilization efforts. Indian agents attempted to turn Indigenous men into farmers who would serve as the heads of monogamous households. At the same time, they sought to transform Indigenous women into faithful wives who embodied European conceptions of modesty and domesticity.12 These assimilation policies attempted to dismantle extended kinship networks, polygamous households, and flexible marriage patterns. As with freedmen and freedwomen, however, the possibility for the full inclusion of Native Americans into American society disappeared over time, even as pressures to abandon traditional practices remained strong.13
Although Indian agents regularly implemented assimilationist policies across the country, they struggled to convince state courts to support their efforts. Oklahoma's Supreme Court in Pompey v. King (1923), for example, recognized the Seminole's right to regulate marriages (including polygamous ones) but also ruled that same year in Blake v. Sessions (1923) that state prohibitions against interracial marriages superseded Creek tribal law. The Court of Indian Offenses, which used Indigenous judges, prosecuted adultery, bigamy, polygamy, and abandonment within Indigenous populations and provided an alternative venue for Indian agents to deal with offenders. Although the Court of Indian Offenses handed out small fines and short jail terms, the results failed to satisfy Indian agents. They thus began to look for solutions outside the legal system to police the boundaries of morality. They learned that threats and deprivation could force change as effectively as jail terms.14
American fears of polygamous relationships among Chinese and Mormon communities fuelled national debates about marriage beyond the reservation. The Morrill Bill of 1862 and the Poland Act of 1874 made bigamy, the act of marrying while already married to someone else, a federal crime and allowed the American government to control the legal enforcement of these policies (including jury selection) to a much greater degree. New federal laws, backed up by federal troops, made the open practice of sexual deviancy a more dangerous proposition. Congressmen increasingly associated Mormons with barbarism and despotism, and attempted to strip them of their claims to whiteness by linking their degenerated lifestyles to those of Chinese, African, and Indian polygamists.15
Although punishing sexual crimes remained a relatively small portion of the duties of police officers, popular concern about morality and family after the Civil War increased the punishments for convictions. Between 1871 and 1880, for example, New York Deputy Sheriff Fuller conducted 570 arrests. Fuller arrested approximately as many people for malicious mischief (thirty-three), a form of destruction of property, as he did for abortion, bastardy, abandonment of families, incest, bigamy, assault to commit rape, seduction, and abandonment of children combined (thirty-five).16 However, those caught for sexual crimes by men like Fuller faced increasingly onerous punishments by the end of the century. The Edmunds Act of 1882 and the Edmunds-Tucker Act of 1887, for example, criminalized unlawful cohabitation, stripped polygamists of the right to vote, hold civil office, or sit on juries, and led to the arrests of one thousand Mormons across the United States for polygamy. By 1890, the Mormon Church, faced with sustained and extensive repression, renounced polygamy as a church practice.17
Canada escaped the demographic devastation caused by the Civil War, but it did not escape the widespread concern about social ordering, immorality, and non–Anglo-Saxon immigration. Canadian politicians and social reformers worried about Mormons' marriage patterns, as well as those within Indigenous communities. They feared that interracial marriages and the persistence of large numbers of single men in the Canadian West would slow the progress of civilization and provide increased opportunities for prostitution, polygamy, concubinage, homosexuality, miscegenation, and barbarity. Indian agents and missionary organizations, such as the Women's Baptist Home Mission Society, Anglican Columbia Mission Society, and Methodist Missionary Society, rarely distinguished between tribal practices when creating sweeping narratives of Indian depravity set against a backdrop of Euro-Canadian civility.18
The Canadian Department of Indian Affairs, in an attempt to instill lifelong, monogamous, voluntary, and heterosexual Christian unions within Indigenous communities, engaged in a systematic and prolonged struggle to punish dissenters throughout the late nineteenth century. As in the United States, the unique legal status of Indigenous people within Canada expanded the ways that the Department of Indian Affairs could prosecute Indigenous immorality. This unique legal status also, however, created perplexing jurisdictional questions that shaped the methods of surveillance and control used, and restricted the number of departments that felt comfortable adjudicating cases involving Indigenous people. In practice, Indian agents enforced sexual conformity by threatening legal prosecutions against deviants, withholding treaty annuities and rations, controlling the paths of inheritance to “legitimate” heirs only, treating unrecognized spouses as trespassers on the reserve, banishing suspected Indigenous prostitutes from urban areas or impeding their travel, and depriving “immoral” women of their children by sending the children to residential schools.19
During the 1880s and 1890s, for example, John Beattie, the Indian agent at the Muncey Reserve in Southern Ontario, undertook a campaign of economic deprivation and legal harassment to punish the adulterous relationship between Martha Dolson (widow) and Jeremiah Stonefish (married, his wife living in Munceytown). Beattie removed Dolson from band pay lists, refused her back pay, and charged her with desertion. When that failed, he charged her and Jeremiah Stonefish with maintaining a house of prostitution.20 Beattie's superiors and the minister of justice continually overturned his punishments. The lag time between his sanctions and their redress hurt Dolson, however. It attacked her psychological and economic well-being and strained her relationship with her family for the better part of a decade. His preoccupation with her conduct specifically may have been exacerbated by her willingness – and success – to challenge his initial sanctions. Although Beattie argued that federal law and the wishes of the local Indian Council justified his punishments, he cared little about what Dolson was convicted of. He cared only that she suffered for her consistent refusal to live by his standards of decency and respectability.21
While the Canadian Department of Indian Affairs struggled, much like their American counterparts, to secure convictions, they were more than capable of creating significant difficulties for Indigenous couples who ignored their pronouncements. Dolson was not alone. Indian agents, acting or claiming to act at the behest of tribal governments, attempted to expel accused adulterers from the band membership rolls of the Parry Sound Band and Alnwick Agency. They also launched investigations at the Bay of Quinte into the status of women who remarried after being abandoned for many years. Men and women who maintained irregular family patterns risked incarceration, deprivation of treaty payments, legal fees, and frequent federal interventions in their lives and their children's, which could drag on for years.22
The border threatened domestic control over sexuality by providing multiple legal systems that individuals or communities could take advantage of. Unless both countries developed their policies to enforce morality in tandem, a legal crackdown in one country simply forced offending individuals temporarily to the other side of the line. For their part, Canadian reformers and missionaries feared that looser divorce laws south of the border would lure Canadian citizens away from pious living. The same kind of problem occurred in the opposite direction. In 1886, for example, Charles Ora Card and his Mormon followers took refuge in southern Alberta to escape American prosecution. Canadian courts convicted American bigamists with short prison terms if they were caught practising plural marriages within Canada, but so long as they openly appeared to obey Canadian laws, they remained largely outside the reach of agents in both countries.23
Punishing dissent in transnational regions required constant effort and offered little promise of success. Agents often succeeded in punishing criminals who slipped up, but relying on mistakes offered only small victories. Elizabeth J. Coleman of Vancouver, British Columbia, for example, had been married to John Coleman for thirty-nine years. In 1908, Elizabeth crossed the line into the United States, divorced her husband, and married R.F. Arsany of Vancouver. R.F. Arsany and Elizabeth Coleman (now Elizabeth Arsany) moved back to Vancouver, where they went on to live together. Their decision to move back across the border proved disastrous, as Canada did not recognize divorces procured by Canadian citizens in the United States. Instead of requiring that John or one of his children press charges, the Attorney General's department charged Elizabeth with bigamy.24
In other instances, individuals incriminated themselves by giving immigration officials and police officers grounds for intervention. In 1906, Thomas D'Arcy, the immigration inspector at Plattsburg, New York, deported Marie St. John and Rosa (Rose) Bellfore back to Canada after he secured confessions that the two women had previously been “inmates of a house of ill fame in Montreal.”25 He deported Blanch LaVoice merely for her association with two suspected prostitutes. However, waiting for criminals to make mistakes or confessions, while occasionally viable, failed to provide a comprehensive solution to the difficulties created by the border. This style of policing encouraged Indian agents and police officers to look for new ways to intervene in the lives of borderland residents.26
Police officers and Indian agents, with the support of immigration inspectors, politicians, and sympathetic judges, recalibrated national laws and diplomatic agreements to address domestic concerns about immorality by expanding their power across borders. These measures achieved a desired end point (reformed behaviour, jail time, fines, financial stress, or general suffering) while keeping the pathway (deportation, criminal proceedings, coercion) flexible. If one approach failed, federal, state, and local officers used an alternative pathway to achieve their desired end. In practice, this scattershot approach created significant racial variation in their policies. Canada and the United States controlled deviancy among Chinese immigrants through broadly based immigration restrictions and deportations, but through status, inheritance, and annuities among Indigenous communities. They controlled white populations through creative applications of deportation and extradition laws. These racialized forms of policing never operated as exclusive categories, however. While immigration inspectors disproportionately targeted Chinese immigrants, they also deported white immigrants believed to have broken sexual norms. Race guided but did not determine officials' approaches and preferred methods of control.
Restricted entries and deportations provided one of the dominant ways that the United States and Canada sought to influence the practice of sexuality across international lines. In the process, they attempted to use and strengthen existing immigration policies to divide the desirable from the undesirable using deportations and exclusions and to help control the composition of the American population.27 Immigration agents carefully screened single women at entry points, for example, and held them at the docks until their male relatives called for them to ensure that their sexual respectability was maintained.28 In the case of Asian immigrants, the United States policed suspected immorality across international lines by linking it to the much larger campaign for Chinese exclusion. Federal immigration agents used the 1875 Page Act, which prohibited immigration for immoral purposes, to selectively target Chinese women, whom immigration officials believed entered the United States as concubines, second wives, and prostitutes. The United States supplemented this act by passing Chinese exclusion laws starting in 1882.29
Canada initially relied on a head tax to dissuade Chinese immigration before passing a Chinese exclusion act of its own in 1923. The act barred the entry of Chinese labourers and allowed only select classes of people with Chinese heritage (notably diplomats, merchants, and students) to enter the country. Canada supplemented the explicit Chinese exclusion policies with a selective enforcement of the 1923 Opium and Narcotic Act. By 1932, Canada had deported 761 Chinese people under the act, including many that had been living in Canada for close to two decades.30
The immigration laws in Canada and the United States and the policies that surrounded them had both a racial and gendered justification. Banning or discouraging unwanted immigrant groups, especially as family units, decreased the potential for the creation of American- or Canadian-born children and eased the minds of nativist reformers who saw foreign women as debased. Immigrants to both Canada and the United States could be excluded for crimes of “moral turpitude” or breaches of “immorality” more generally, even though the immigration acts provided only limited clarity for how these terms could be interpreted. The vagueness of language in the statutes gave immigration inspectors significant latitude to police all kinds of consensual acts, including sexual relations with minors, interracial relationships, premarital relationships, interstate prostitution, bigamy, divorce, and polygamy. As Blanch LaVoice's deportation for associating with immoral women suggests, immigration inspectors had tremendous latitude to exclude individuals, even for mere association, giving the inspectors plenty of flexibility to apply these policies to support broader racial goals.31
Exclusionary polices gave immigration agents the ability to police the morality of Chinese immigrants living in the country even decades after their arrival. In Canada, the Immigration Act of 1906 created specific provisions for the deportation of immigrants within two years of entry, and the Immigration Act of 1910 extended the deportation period to three years. In practice, however, deportations occurred prior to being specifically set down in law. Canadian immigration officials shipped immigrants who could not have legally entered Canada back to the country whence they came “much as if they had never gained admission.”32 Even after deportation provisions were firmly in place, immigration agents intentionally miscategorized their charges, revoked naturalization certifications to expand the range of people who could be deported, and relied on small technical violations to justify deportations. They reframed deportations as repatriations and used a wide array of other bureaucratic workarounds to make the legal system fit with their conception of justice.33
In the United States, the Immigration Act of 1903 established provisions through which aliens inadmissible at the time of entry could be deported within three years of their arrival. As in Canada, agents in the United States relied on a wide range of bureaucratic and extralegal techniques to accomplish their objectives.34 In 1906, for example, officers in Montana accused Na Lay (Annie Kum Chee, Ah Ho), a thirty-three-year-old Chinese immigrant, of engaging in prostitution. Na Lay (Figure 1) had resided in the United States for most of her life. A number of witnesses supported her claim, arguing that she had lived there since she was a young girl. Despite residing in the country for a long time, Na Lay's membership in “the labouring class,” her separation from her husband, and accusations that she had worked at a brothel for part of her life created little sympathy with the immigration officials handling her case.35 Immigration officials used her lack of a certificate of registration and her unlawful presence in the United States after the exclusion act as their basis for deporting her. Na Lay's defenders attempted to prevent her deportation, arguing that she was an educated, inoffensive Christian, and “in every way a respectable woman” who arrived in the United States as a young girl and would likely meet “death or torture” if sent back to China.36 Was Na Lay a prostitute or a woman of respectability? This question was central to the debates over her right to remain in the United States. Here, and within the bureaucracy of border control, immigration agents operated as gatekeepers of both race and gender.37
Deprivation provided an alternative approach to transnational control that differed from deportations and restricted entry in that it targeted an individual's happiness, solvency, and social connections instead of their mobility or residency. This style of control allowed federal agents to exert pressure even on individuals who remained in foreign lands. While restricted entries and deportations served as a valuable tool for policing Chinese migrations, it proved cumbersome to apply to Indigenous communities because of the complicated and uncertain ways that immigration law interacted with treaty rights. As late as 1930, Indian agents and immigration officials remained uncertain about how immigration law applied to Indigenous people who travelled between Canada and the United States. When asked to rule on the possible deportation of a mixed-blood, non-status woman causing trouble, the superintendent of the Turtle Mountain Agency in North Dakota argued that non-status Indians could be deported back to Canada under existing immigration law. E.A. Allen, the superintendent of the Consolidated Chippewa Agency in Minnesota, challenged that interpretation, arguing instead that Indian blood, not status, eliminated the Department of Immigration's authority. The ambiguity of blood and status created a difficult and amorphous environment in which to work. Indian agents and immigration officials struggled to draw clean lines between their relative authorities even when they wished to co-operate toward the same ends.38
Indian status and heritage impeded the ability of immigration officials to control mobility at the border, but also gave Indian agents significant coercive control that spanned nations. This control relied on deprivation at home – of family connections, annuities, inheritance, status, and land – to punish individuals and their kin abroad through delayed and indirect punishments. The psychological and economic damage caused by these policies, as the case of Charley Williams suggests, could exceed the legal punishments that Indian agents could deliver domestically.
Charley Williams, his health starting to fail, declared in 1908 that “he was going to come home even if he had to die for it.”39 He crossed the Canada-United States border, where he was immediately arrested for his role in a half-decade-long conflict over marriage, child rearing, and colonial morality. In 1902, Charley, a member of the Tulalip Reservation in Washington State, attempted to divorce his wife Louisa Williams. The Superior Courts ruled in favour of his wife, denying the divorce on the grounds of a lack of jurisdiction, which set Charley's voluntary exile and eventual return into motion.
The court's decision resulted in a short reconciliation between Charley and Louisa but no lasting changes. Charley, frustrated by the legal decision, left his wife and the reservation behind and relocated to Canada with Cecelia Joshua. Charley's cohabitation with a woman other than his own wife directly went against the marriage reforms against bigamy and adultery that Indian agents had been attempting to put in place across Washington reservations since the 1890s. Just as importantly, when the newly formed couple absconded across the border, they brought with them a child who had previously been enrolled at an Indian school. Edward Bristow, a local employee of the Office of Indian Affairs, took particular offence at the couple's interference with federal education programs, noting that it did significant harm to the child's development.40
From a federal perspective, Charley Williams and Cecelia Joshua's actions challenged the sanctity of marriage and the assimilation of Indigenous youth while flaunting the limitations of federal power.41 The international border stymied federal representatives like Edward Bristow, who struggled to control individuals when they moved beyond his jurisdiction. Bristow recruited a Canadian Indian agent from the Cowichan reserve near Victoria to assist him, but neither man succeeded in locating the couple, who Bristow believed Canadian Indians helped to protect. Despite Bristow's best efforts, Williams and Joshua continued to live transnational lives. They made short jaunts from British Columbia back into Washington State three times a week to peddle clams at Friday Harbor, a decision that cost them their supplies and their boat in a government raid. Still, the couple remained outside the hands of Canadian and American Indian agents.
In 1908, Bristow received word from Willie Dan, Cecilia Joshua's son-in-law, that the couple wished desperately to come home. The two were in their mid-fifties and in poor health, and they agreed to leave Canada knowing the punishments that might await them. Bristow arrested Charley Williams on his return to the United States but advocated leniency, given Williams's present condition. Bristow enrolled Foster Sam, the child, in a nearby school to continue his education. After crossing the border, Charley Williams resumed his attempt to divorce Louisa Williams, reaffirming his commitment to finding a relationship beyond the one prescribed by American courts and Indian agents.42
Charley Williams and Cecelia Joshua's partially successful attempt to utilize the border to escape federal pronouncements highlights the incomplete power wielded by Indian agents. Agents in both countries for years failed to stop Williams and Joshua from cohabitating, crossing the border, or avoiding prosecution. They succeeded, however, in ensuring that the couple faced exile and suffering in order to do so. Avoiding the jurisdiction of American Indian agents required that Williams and Joshua remained distant from their families and communities while also hampering their ability to take advantage of transnational economic opportunities. This avoidance prevented them from exercising tribal rights but did not alleviate the ever-present spectre of arrest. The psychological and financial impacts of these forms of deprivation eventually exceeded the domestic punishments that awaited Williams and Joshua in the United States.
Indian agents used their ability to control status to determine illegitimacy and to assign inheritance to similar effect. Indian agents excluded illegitimate children from pay lists, creating significant financial difficulties for individuals and their kin who refused to abide by European norms. These decisions had wide-reaching implications. In 1883, for example, James Monture of the Grand River Indian Reserve in Ontario attempted unsuccessfully to defend his marriage by Indian custom to the superintendent general of Indian Affairs by suggesting that his child was legitimate, even though he did not marry “like you white people do.”43 Although Monture had the ability to cross the border to maintain his romantic relationship beyond the gaze of Canadian Indian agents, as Williams and Joshua had done, his connection to tribal property in Canada gave Canadian Indian agents the ability to punish his actions from a distance.44 Under the Indian Act of 1880, “any Indian having for five years continuously resided in a foreign country without the consent in writing of the Superintendent-General or his agent” could be stripped of their band membership.45 This provision put a timer on Indigenous resistance in Canada and forced individuals to make hard choices.
Indian agents' ability to recognize or ignore Indigenous marriages gave them control not only over status but also over the intergenerational transfer of property and inheritance. In Canada, an 1884 amendment to the Indian Act allowed Indian agents to exclude widows from claiming the property of their deceased husbands if they lacked good moral character or lived separately from their husbands at the time of death.46 As with other forms of deprivation, control through inheritance proceedings allowed Indian agents to use property and economic incentives held domestically to punish or reward actions of individuals who were often abroad.
Complex estates allowed Indian agents in both Canada and the United States to exercise power through their considerable discretion. The estate of Johnson Bob, for example, contained property in Canada and a one-sixth share of the estate of Solomon Cheeskin, a Lummi from Washington State. Johnson Bob was survived by Adeline Bob (his daughter) and Agnes Johnson Bob (his wife since 1919). He had lived with two previous women, Josephine Pelky and Agnes Johnny, both of whom had weak claims to his property. Johnson Bob's inheritance was difficult to assign because it contained property in two countries and because British Columbia did not recognize his marriage to Agnes as legally binding – the marriage had occurred by Indian custom rather than in a church. As a result, the Canadian government denied his widow any rights to the estate and turned it over in its entirety to his daughter. The inclusion of Solomon Cheeskin's estate within Johnson Bob's estate also muddled the process by giving the American government a right to rule in how that portion of property would be divided up.47
An American examiner of the estate believed that the United States government should follow British Columbian law on the matter, as all of the Indians in question were “Canadian” and the marriage had occurred in Canada. Differences in how each country approached the legal precedent for the case, however, created a rift in their decisions. Both used the Kelly-Hoptowit case as a basis for consideration. Kelly, a white settler from Canada, crossed the border to the United States to marry Salome Hoptowit. Kelly pretended to be unmarried at the time of his new vows. Upon Hoptowit's death, the estate was given to Hoptowit's children rather than to Kelly, because Indian agents did not recognize their marriage as valid.48
While the Canadian examiners had used the Hoptowit case as a partial justification for their ruling, American Assistant Commissioner E.B. Merritt disagreed about its applicability. Merritt argued that in Johnson Bob's case, the wife who was being excluded from inheritance had lived with Bob for a number of years, maintained a matrimonial relationship with him, cared for and supported his child, and was recognized as his wife by her people. Merritt argued that if their marriage by Indian rite was not legally recognizable, then it was most certainly recognizable under common law. He advocated that Agnes receive one-third of the deceased's estate.49
The ability to adjudicate challenging inheritance cases allowed Indian agents to stamp their conceptions of the proper ordering of families onto day-to-day life in tangible ways. Domestically, Indian agents bullied individuals who engaged in undesirable sexual relations by threatening them with fines, short jail sentences, disruption, and social humiliation. Their coercive bookkeeping regarding Indian status and inheritance expanded their reach beyond international borders, allowing them to exert significant pressure onto Indigenous families, even those who could avoid direct punishment by crossing national lines. Although they could not force compliance, they could shift the flow of intergenerational wealth or engage in other forms of coercive deprivation to punish the persistence of unwanted martial practices.50
Social reformers, church leaders, and federal agents could not rely on deprivation or racially exclusionary policies, which they used to great effect against Chinese and Indigenous communities, to control morality as easily among Euro-Canadians and Euro-Americans. Instead, police officers in Canada and the United States used a creative interpretation of existing laws to extend their power. Doing so often required that they relied on secondary charges to punish individuals whose crimes did not fall specifically within the confines of the extradition agreements. This creative improvisation on the limitations of extradition allowed police officers to stretch each nation's judicial system well beyond its national borders.
On 3 October 1881, Archibald W. Browne sent a complaint from his jail cell in Buffalo, New York, to Prime Minister John A. Macdonald accusing the American government of falsely applying extradition proceedings against him in order to secure his surrender. In 1880, a Buffalo grand jury had indicted Browne for his part in an abortion gone wrong, which had resulted in the death of Cynthia Van Allan McCrea. The courts believed that McCrea and Browne had travelled from Ontario to New York acting as husband and wife under assumed aliases. Once there, McCrea procured an abortion from Dr. Edwin Pynchon, resulting in a miscarriage on 15 June 1880, and her death shortly thereafter. Browne returned to Canada, where the border offered a partial shield to prosecution.51
In his letter to the prime minister, Browne argued that the American judicial system had initially attempted to extradite him as an accessory to the abortion but switched the charge to murder when they discovered that abortion was not covered under the extradition treaty. Browne complained that Judge Charles Beckwith stated that Browne could be charged with any crimes the court desired after he crossed the border. Although Browne was eventually acquitted, the threat of extradition being used beyond its negotiated boundaries strained international relations.52
By the turn of the twentieth century, the United States, Canada, and Britain responded to their strained relationship by making crimes against the family extraditable charges. The United States and Britain ratified rape, abduction, and child stealing as extraditable offences in 1890. They added procuring an abortion to the ratified list in 1901, and wilfully deserting minors or dependent children was added in 1922. By 1932, criminals could be extradited for administering drugs to produce miscarriages; having carnal knowledge of a girl under sixteen years of age; rape; indecent assault; child stealing, including abandonment; procuring or transporting a woman for immoral purposes; and bigamy. The inclusion of abortion, abandonment, and other perceived crimes against the family under extradition law demonstrated how severely both governments viewed these crimes, as it put them on par with commercial fraud (forgery, embezzlement, and counterfeiting) and violence (arson and murder) as the primary types of offences serious enough to justify an international agreement. The expansion of international law provided new avenues for federal officials to police familial relations, but the border still complicated their quest to stamp out immorality. Police officers continued to rely on secondary charges to secure justice in the face of transnational mobility, even while the changes to the scope of extradition law were under way.53
In 1905, for example, the State of California began an extradition hearing against George Daniel Collins, a San Francisco lawyer, who fled to Victoria, British Columbia, after being charged with bigamy. American authorities argued that Collins had married Charlotta Eugenie Newman on 15 May 1889 while also being intimate with his wife's sister, Agnes. When Agnes died of diphtheria, Collins denied his marriage to Charlotta in order to pursue Clarice McCurdy, a young, wealthy woman from Chicago. The accusations of bigamy put Clarice McCurdy, Charlotta Newman, and George Daniel Collins (Figure 2) in a difficult position. As bigamy was a non-extraditable charge, American authorities charged Collins with perjury instead.54 They based this perjury charge on sworn testimony – that the two were not married – made by Collins in an attempt to avoid providing Charlotta Newman with financial support. Lewis F. Byington, the district attorney pursuing Collins's extradition, used Collins's false oath on 30 June 1905 to the notary public as a convenient workaround to the limitations of extradition.55
Collins claimed that he was at the centre of a conspiracy. He believed that the Hibernia Bank of San Francisco had pressured the State of California to lay charges against him in retribution for legal work Collins had conducted against the bank. Collins argued that judges, members of the bar, and the press had carried the plot for revenge further. Collins believed that the judges hated him because he “secured reversals of their decisions; the others because he [Collins] has employed his talents as an attorney to legally protect the criminal element.”56 Collins alleged that he had been married to Agnes, not Charlotta, and that the priest provided the wrong name on the marriage certificate.57
Collins succeeded in delaying his extradition from Canada, but not preventing it. Irregularities in the process worried parties on both sides of the line, however. The Canadian sheriff in charge of Collins held him at a hotel instead of a jail. The prisoner was allowed to walk the streets freely during the day and night, so long as a sheriff or a representative accompanied him. Officials in California complained that this was an ineffectual system of detainment, and they balked at the twelve dollars or more per day the sheriff charged for his services. The American government did not “object to paying the costs of keeping the prisoner in jail” but complained that it could not see why they should be “expected to pay for the luxuries extended to the prisoner.”58 Despite these irregularities, Canadian officials passed George D. Collins over to the State of California.59
The extradition process, now amended, prevented California from charging Collins with any crime other than perjury. The inability to charge him with bigamy, however, made little difference. California courts sentenced Collins to the maximum punishment of fourteen years in prison. Forty witnesses swore that Collins had married Charlotta Newman versus four witnesses, including Collins himself, who swore otherwise. Clarice McCurdy, Collins's most recent wife, supported Collins throughout the extradition proceedings. She later abandoned him during his actual trial, believing she had been cruelly deceived. Collins spent the next five years fighting his conviction all the way to the Supreme Court before being committed to the San Quentin Penitentiary. He later, unsuccessfully, petitioned to the governor of California for his release. The extensive newspaper coverage during the case and Collins's eventual incarceration ensured that he served as a cautionary tale for spousal abandonment and bigamy.60
The process of punishing transnational crimes against the family required an extended commitment, especially when the defendant had sufficient financial and legal support for a protracted struggle. Federal and state governments took part in these cases despite their expenses because they served three different purposes. First, the cases allowed police officers to crack down on illicit sexuality, even when the crime did not fall within the direct confines of extradition agreements. Bringing criminals back from foreign lands emphasized to prospective lawbreakers that relocation provided only an uncertain protection from prosecution. Second, successful prosecutions helped to bring order to a complicated legal environment in which overlapping state, national, and international jurisdictions made competing and, at times, contradictory rulings. When jurisdictions overlapped, inconsistencies occurred. States disagreed with each other's rulings, resulting in one state viewing an individual as a remarried divorcee while others attempted to prosecute that person as a bigamist. International borders exacerbated these problems, encouraging federal intervention to make sense of competing jurisdictional questions.61
Finally, prosecuting absconding husbands who fled national jurisdictions had an important financial and bureaucratic significance for local, state, and federal governments. Marriage operated as a basic bureaucratic structure for establishing obligations (child custody and marriage allowances) and for clarifying the transmission of property (inheritance). Department of Indian Affairs pay lists, local charities, land grants, and a wide variety of other institutions all relied on marriages to determine eligibility. Abandonment left women suffering from legal structures created by English common law, without any of the supports promised under marriage. This left women in Nova Scotia as late as 1892 with the inability to dispose of an absconding husband's property, even as a last resort to support themselves and their children. In this context, Collins's case mattered because it served to control a fundamental contractual relationship in society. Collins violated the culturally specific norms surrounding men as heads of households and threatened to unload the financial obligations he took through marriage onto local and federal governments, which would be stuck bearing the costs to support wives and dependents.62
While secondary charges could be used to effectively punish those who broke with prescribed methods of family relations, this was an ineffective tool for restitution. On 3 December 1905, Frederick John Tytler filed a case against his wife, Helen N. Tytler, for kidnapping. Tytler claimed that his wife had stolen their children in Victoria and taken them to Wyoming. According to the Ladysmith Daily Ledger, Helen had previously lived with Frederick in Esquimalt, British Columbia, before suffering a series of bouts of insanity. On returning home, she, with her brother, John Boyer, took her children and fled to the United States.63
Frederick succeeded in locating his children in Wyoming and took his case before the American court system. On 2 January, Helen and her brother appeared before Judge David H. Craig in Rawlins, Wyoming. During the court case, it became clear that Helen had no affection for her husband but was fit to care for their children. She refused to live with Frederick and refused to consider the possibility of living near his home in Esquimalt where they could easily share custody. She offered to allow the children to alternate between living with their mother and father every few months, but Frederick rejected the proposal. He responded that he was “sorry that the hallucinations which alienated [his] wife's affections” still remained but that his house would always be open to her.64 Judge Craig ruled that the father had a right to the custody of his children, but granted a stay of execution pending an appeal to the Supreme Court and contingent on Helen Tytler's posting a five-thousand-dollar bond.65
The court case revealed the limitations of the extradition process. Although Tytler could use extradition proceedings to punish his wife and her brother through possible jail time for taking his children, doing so would not secure the return of his children. The courts had the authority to return stolen property that had been taken across the line but lacked the authority to force innocent parties (in this case, the children) to do so. The proceedings were also expensive. John Lacy, the attorney employed on behalf of British Columbia to conduct the habeas corpus proceedings, claimed that his services alone would cost five hundred dollars, with an additional fifty dollars necessary to attend court, and more should the case be appealed.66
The Tytlers were not alone in their predicament. On 12 July 1899, Letitia Perot abducted her eleven-year-old daughter, Gladys, from her father-in-law, who had gained custody of the child following Letitia's divorce from William Perot. Letitia fled to Canada and later to Britain on the steamship Cambroman. Although she succeeded in gaining temporary control of the child, news of her abduction spread faster than she could travel. On 27 July 1899, police officers in Liverpool arrested Letitia for the abduction as she attempted to enter England. Upon her arrest, Letitia agreed to restore Gladys to the custody of the child's grandfather. In exchange, Governor Lowndes agreed to petition the Department of State to withdraw extradition proceedings against her. Letitia may have also received financial compensation to cover her debts as part of the private settlement she made with the child's grandfather. Extradition requests could prompt reconciliation, but on their own they could not fully resolve parental kidnapping cases.67
The United States and Canada proved to be more willing to prosecute transnational familial patterns they found offensive than they did to support familial patterns of which they approved. In 1926, for example, Catherine Cormack, a forty-five-year-old British subject residing in Rhode Island, sent a request to the American consul's office. She desired to become a permanent resident of the United States to take care of her dead sister's three young children. Although the consul's office did not believe Cormack was a risk of either harming the children or becoming a public charge, it denied her request. The office stated that there were three thousand people in line ahead of her to immigrate to the United States and that she would have to wait outside of the country while her case was being processed. Her circumstances did not warrant an exception. Refusing Cormack's request removed the children from their next of kin and created uncertainty regarding their futures.68
As the cases of Archibald Browne, Frederick Tytler, Letitia Perot, and Catherine Cormack suggest, national borders offered an appealing shield for parents attempting to gain full custody of their children following matrimonial breakdowns. Canada and the United States used expansive interpretations of extradition proceedings to prosecute criminals and deviants who fled their jurisdictions, even for crimes not explicitly covered under international agreements. This process was time consuming and expensive, and it contained significant limitations. Even so, it allowed both countries to project their conceptions of morality beyond their borders, allowing them to punish individuals who chose to relocate rather than conform.
Throughout the nineteenth and early twentieth centuries, Indian agents, immigration inspectors, and judges helped to create a multi-tiered system of transnational enforcement. These forms of enforcement were not directed at racial minorities alone. American and Canadian inspectors deported Chinese, Indigenous, and white migrants. The legal status of the defendants, however, influenced the frequency that federal agents relied on a given approach. They developed predominant paths of enforcement that often traced racial lines. This system shifted over time and in response to legal changes within each county. It suffered from inconsistencies and inherent limitations but gave police officers, Indian agents, and moral reformers direct and, more often, indirect power to punish deviancy beyond their explicit jurisdictions.
Immigration inspectors used Chinese exclusion policies to deny entry to or to deport Chinese women who failed to adhere to European conceptions of virtue. The broad language within immigration policy regarding “moral turpitude” gave them significant flexibility in applying restrictions and deportations as they saw fit, allowing them to shape domestic behaviour by controlling transnational movement. Canada and the United States pressured sexual conformity among Indigenous communities by relying on the deprivation of rights, status, and access to land and annuities. They restricted the ways that individuals could interact with their families and communities, maintain or take advantage of their status, and influence how their property was distributed after their deaths. These policies damaged loved ones who remained within the jurisdictional boundaries of the agent, and they indirectly harmed those who moved outside of it. Even when perpetrators crossed national borders to escape prosecution, their connection to domestic communities, status, and land gave Indian agents leverage with which to exert authority.
Canada and the United States often policed European morality across national boundaries through a very different pathway. Instead of relying on strategies of deprivation, they instead focused on retooling their existing extradition policies to selectively target individuals with secondary charges. These policies allowed them to make examples of people who relocated rather than submitted.
Together, the policies Canada and the United States used against Chinese immigrants, Indigenous communities, and white settlers allowed them to help resolve domestic concerns about immorality through an international framework. Eliminating international havens for immorality helped to eliminate alternative options to the domestic systems of control that missionaries, Indian agents, and police officers built and maintained. The borders between nations constrained enforcement efforts, but they did not always block the actions of federal agents. Canadian and American agents exercised power directly and indirectly beyond their jurisdictions, hoping to reshape sexual practices on an ambitious transnational scale.
I would like to thank Tyla Betke for her research assistance on this project. I would also like to thank my colleagues at the University of Saskatchewan who provided feedback on this paper at various stages of its development, as well as three anonymous peer reviewers. This research was supported by the Social Sciences and Humanities Research Council of Canada.
1 J.C. Phipps, “Proceedings of a Council of Chiefs and Indians Held at Manitowaning,” 31 August 1876, “Manitowaning – J.C. Phipps Sending an Account of the Proceedings of a Council of Indians held at Manitowaning on August 21 Concerning Annuities to Indians Residing in the U.S,” rg 10, Indian Affairs, vol. 1996, file 6990, Library and Archives Canada (lac).
2 Deprivation took many forms but often consisted of hindering the economic opportunities (inheritance, employment, and treaty rights) or social connections (kinship) an individual or members of one's family could maintain.
3 Lissa K. Wadewitz, The Nature of Borders: Salmon, Boundaries, and Bandits on the Salish Sea (Seattle: University of Washington Press, 2012); Andrew R. Graybill, Policing the Great Plains: Rangers, Mounties, and the North American Frontier, 1875–1910 (Lincoln: University of Nebraska Press, 2007); Kelly Lytle Hernández, Migra!: A History of the U.S. Border Patrol (Berkeley: University of California Press, 2010); Peter Andreas, Smuggler Nation: How Illicit Trade Made America (New York: Oxford University Press, 2013); Holly M. Karibo, Sin City North: Sex, Drugs, and Citizenship in the Detroit-Windsor Borderland (Chapel Hill: University of North Carolina Press, 2015); Katherine Unterman, Uncle Sam's Policemen: The Pursuit of Fugitives Across Borders (Cambridge, ma: Harvard University Press, 2015); Bradley Miller, Borderline Crime: Fugitive Criminals and the Challenge of the Border, 1819–1914 (Toronto: University of Toronto Press, 2016).
4 Michel Hogue, Metis and the Medicine Line: Creating a Border and Dividing a People (Regina, sk: University of Regina Press, 2015); John Sutton Lutz, Makúk: A New History of Aboriginal-White Relations (Vancouver: ubc Press, 2008); Jean Barman, “What a Difference a Border Makes: Aboriginal Racial Intermixture in the Pacific Northwest,” Journal of the West 38, no. 3 (1999): 14–20; Gerald F. Reid, “Illegal Alien? The Immigration Case of Mohawk Ironworker Paul K. Diabo,” Proceedings of the American Philosophical Society 151, no. 1 (2007): 61–78.
5 Sarah J. Mahler and Patricia R. Pessar, “Gender Matters: Ethnographers Bring Gender from the Periphery toward the Core of Migration Studies,” International Migration Review 40, no. 1 (2006): 27–63; Sarah Carter, The Importance of Being Monogamous: Marriage and Nation Building in Western Canada in 1915 (Edmonton: University of Alberta Press, 2014); Sheila McManus, The Line which Separates: Race, Gender, and the Making of the Alberta-Montana Borderlands (Lincoln: University of Nebraska Press, 2005); Nayan Shah, Stranger Intimacy: Contesting Race, Sexuality, and the Law in the North American West (Berkeley: University of California Press, 2011), 2–3.
6 The word “deviant” is used throughout this paper as shorthand for the various ways that reformers and state officials categorized nonconforming individuals during the nineteenth century, rather than an interpretation of their behaviour from a modern point of view.
7 Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, ma: Harvard University Press, 2000), 4, 24–9, 126; Kathleen S. Sullivan, “Marriage and Federal Police Power,” Studies in American Political Development 20, no. 1 (2006): 45; Victor Jew, “‘Chinese Demons': The Violent Articulation of Chinese Otherness and Interracial Sexuality in the U.S. Midwest, 1885–1889,” Journal of Social History 37, no. 2 (2003): 401–4; Carter, The Importance of Being Monogamous, 3.
8 Sullivan, “Marriage and Federal Police Power,” 52; Cott, Public Vows, 39. In Guyer v. Smith, for example, the Maryland Courts of Appeals ruled in 1864 that foreign-born children of an American father did not constitute citizens of the United States if they were born out of wedlock. Kristin A. Collins, “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” Yale Law Journal 123 (2014): 2141–6, 2156.
9 “Father Gives Son Thrashing: As Sentence Imposed by Judge in Chicago Juvenile Court,” Bennington Evening Banner, 16 April 1919, 6.
10 Carter, The Importance of Being Monogamous, 57–9; Claire A. Smearman, “Second Wives' Club: Mapping the Impact of Polygamy in U.S. Immigration Law,” Berkeley Journal of International Law 27, no. 2 (2009): 390; Sullivan, “Marriage and Federal Police Power,” 47–52; Cott, Public Vows, 2, 4–7.
11 Cott, Public Vows, 7, 33, 45–6, 52–3, 78, 144; Sullivan, “Marriage and Federal Police Power,” 47–50; Collins, “Illegitimate Borders,” 2157; Shah, Stranger Intimacy, 163; Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (Oxford: Oxford University Press, 2009), 63.
12 In their efforts to break communities of their sexual practices, Indian agents often fell short of their goals. In May of 1917, James McLaughlin, with the help of Peter Kinnewash (Chippewa), Baptiste Sammatte (Chippewa), Little Bear (Cree), and supporting personnel, enumerated the Rocky Boy Reservation in Montana. They recorded sixty-nine families who had married by tribal custom, sixty-one by priests or government officials, and twenty with no indication of the process. Divorces or abandonments occurred, but without the sanction of American religious or political authorities, suggesting an unwillingness by the Rocky Boy community to be bound by American legal proscriptions about families. Federal officials also had not been able to drive polygamy completely underground, even after decades of effort. At the census taking, Big Rock continued to live in an openly polygamous relationship with Bad Arm and Bear Claw. James McLaughlin, “Family History of Rocky Boy Indians,” 1917, Rocky Boy Collection, M7937, Glenbow Archives; James McLaughlin, “Family History of Rocky Boy Indians – Marriage Cards,” 1917, Rocky Boy Collection, M7937, Glenbow Archives.
13 Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians, 1880–1920 (Lincoln: University of Nebraska Press, 1984); Sullivan, “Marriage and Federal Police Power,” 52–3; McManus, The Line which Separates, 91–2.
14 D.M. Browning to D.C. Govan, 8 January 1895, rg 75, Letters received – Commissioner of Indian Affairs, Tulalip Agency, box 9, folder 1894, National Archive Pacific Northwest Region (na pnr); Forty-Ninth Congress of the United States of America – Second Session, “An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations, and to Extend the Protection of the Laws of the United States and the Territories over the Indians, and for Other Purposes 1887 [Dawes Act],” rg 11, Enrolled Acts and Resolutions of Congress, 1789–2011, 5641587, National Archives and Records Administration (nara); L.D.C. Atkins to W.H. Talbott, 1 March 1887, rg 75, Letters received – Commissioner of Indian Affairs, Tulalip Agency, box 7, folder 1886–1887, na pnr; Edward Bristow to Jesse E. Flanders, 22 December 1906, rg 75, bia, Letters received – Tulalip Agency, Swinomish, box 8, folder 4, na pnr; Hal J. Cole, “Reports of Agents in Washington,” 26 August 1892, 491, Office of Indian Affairs Annual Report Online (oia aro), University of Wisconsin-Madison Digital Collections (uwdc); Chas. E. Monteith to The Commissioner of Indian Affairs, “Reports of Agents in Idaho,” 24 August 1886, 113, oia aro, uwdc; Cornelius W. Crouse to The Commissioner of Indian Affairs, “Reports of Agents in Arizona,” 18 August 1890, 9, oia aro, uwdc; James McLaughlin to The Commissioner of Indian Affairs, “Report of Standing Rock Agency,” 26 August 1890, 40, oia aro, uwdc; Atkins to Talbott, 1 March 1887; Mark P. Strasser, “Tribal Marriages, Same-Sex Unions, and an Interstate Recognition Conundrum,” Boston College Third World Law Journal 30, no. 2 (2010): 217–19, 227–8; Pompey v. King, 1923 ok 1094, 225 P. 175, 101 Okla. 253, Case Number: 14500 (Okla. 1923); Blake v. Sessions, 1923 ok 746, 220 P. 876, 94 Okla. 59 (Okla. 1923).
15 Smearman, “Second Wives' Club,” 391–2; Casey E. Faucon, “Marriage Outlaws: Regulating Polygamy in America,” Duke Journal of Gender Law & Policy 22, no. 1 (2014): 9–10; Collins, “Illegitimate Borders,” 2165; Cott, Public Vows, 112–13; Deirdre M. Moloney, National Insecurities: Immigrants and U.S. Deportation Policy Since 1882 (Chapel Hill: University of North Carolina Press, 2012), 138–40; Eithne Luibhéid, Entry Denied: Controlling Sexuality at the Border (Minneapolis: University of Minnesota Press, 2002), 6.
16 “Tribunings,” Medina Tribune, 19 August 1880, 3.
17 Kristen A. Berberick, “Marrying into Heaven: The Constitutionality of Polygamy Bans under the Free Exercise Clause,” Williamette Law Review 44, no. 105 (2007): 110–15; Faucon, “Marriage Outlaws,” 12; Peter S. Morris, “Charles Ora Card and the Mormon Settlement on the Northwest Plains Borderlands,” in The Borderlands of the American and Canadian Wests: Essays on Regional History of the Forty-Ninth Parallel, ed. Sterling Evans (Lincoln: University of Nebraska Press, 2006), 172–3; Smearman, “Second Wives' Club,” 390–3; Carter, The Importance of Being Monogamous, 42; Cott, Public Vows, 38, 118, 126–8.
18 Carter, The Importance of Being Monogamous, 5, 30–1, 38, 50; McManus, The Line which Separates, 92; Renisa Mawani, “‘The Iniquitous Practice of Women': Prostitution and the Making of White Spaces in British Columbia, 1898–1905,” in Working Through Whiteness: International Perspectives, ed. Cynthia Levine-Rasky (Albany: State University of New York Press, 2002), 44, 46, 50–1; Adele Perry, “‘Oh I'm Just Sick of the Faces of Men': Gender Imbalance, Race, Sexuality, and Sociability in Nineteenth-Century British Columbia,” bc Studies 105/106 (1995): 31–3; Jean Barman, “Taming Aboriginal Sexuality: Gender, Power, and Race in British Columbia, 1850–1900,” bc Studies 115/116 (1998): 244; “How It Is Done in Ontario: Toronto Man Marries Second Time – First Wife Nine Children Living,” District Ledger (Fernie, bc), 6 June 1908, 7; “Must Go Back to Hong Kong,” District Ledger, 3 October 1908, 3; “Three Years for Bigamy,” District Ledger, 29 May 1909, 2; Shah, Stranger Intimacy, 34.
19 Canada. Parliament, House of Commons, Bill: An Act Further to Amend the Indian Act (Ottawa: S.E. Dawson, 1898), 3; Sally Monture et al. to A. Dingman, 9 March 1886, rg 10, Indian Affairs, vol. 2441, file 92,026, Grand River Superintendency, Six Nations Reserve – Complaints to Numerous Parties Who Claim that They Have Been Injustly Excluded from the Annuity Paylists of the Six Nations, lac; Samuel French et al. to Superintendent General of Indian Affairs, 5 May 1894, rg 10, Indian Affairs, vol. 2159, file 32,811, Caradoc Agency – Resolution from the Chippewas of the Thames Requesting that Illegitimate Children, Whose Mother or Father Is Indian, Be Placed on the Paylist, lac; Canada, “An Act to Amend and Consolidate the Laws Respecting Indians, May 7, 1880,” in Act of the Parliament of the United Kingdom of Great Britain and Ireland (Ottawa: Brown Chamberlin, 1880), 208; Carter, The Importance of Being Monogamous, 12–16, 170–1, 209–10, 261; Mawani, “The Iniquitous Practice of Women,” 59–60.
20 Beattie could not remove Dolson from the pay lists for adultery so instead charged her with deserting her family, toward which he could gather only inconsistent evidence. In his later charge against her and Stonefish, for maintaining a house of prostitution, he noted that “a woman who allows a man to whom she is not married to occupy the same bed with her, must certainly be regarded as prostituting herself, and if he or she is already married, as committing adultery.” Under this broad definition, prostitution occurred even if no money changed hands and even if Dolson had only one sexual partner. John Beattie to Deputy Superintendent General of Indian Affairs, 17 August 1892, microfilm reel C-12782, rg 10, vol. 2353, file 71,320, Moravian Agency – Correspondence Regarding the Removal of Martha Dolson from the Paylists of the Moravians of Thames and the Prosecution of Mortha Dolson and Jeremiah Stonefish for Keeping and Frequenting a House of Prostitution (Removal of Dolson), lac; John Beattie to Superintendent General of Indian Affairs, 21 September 1886, Removal of Dolson, lac.
21 The case created an interesting problem. The Indian Act provided grounds to remove individuals who abandoned their families from the pay lists, but it did not allow for exclusions for adultery. John Beattie to Superintendent General of Indian Affairs, 22 January 1891, Removal of Dolson, lac; John Beattie to Superintendent of Indian Affairs, 11 March 1891, Removal of Dolson, lac; Chief W.J. Waddilove, “Extract,” 5 May 1886, Removal of Dolson, lac.
22 John Beattie to Superintendent General of Indian Affairs, 30 July 1892, Removal of Dolson, lac; Thos. Walton to L. Vankoughnet, 9 March 1893, Indian Affairs, rg 10, vol. 2678, file 136,208, Parry Sound Superintendency – Correspondence Regarding the Proposed Expulsion of Louis Ogemanenonini and Mrs. Jane Manitowaba, His Sister-inlaw, from the Parry Island Band for Adultery, lac; Unsigned to John Thackeray, 5 May 1891, Indian Affairs, rg 10, vol. 2428, file 88,970, Alwick Agency – Correspondence Regarding a Request from the Indian Council of Alnwick to Expel Lewis Hager and Mrs. A Lake from Membership of the Band on the Ground of Adultery, lac; Chaterine Sew to W.G. Eger, 31 March 1894, Indian Affairs, rg 10, vol. 2749, file 147,706, Tyendinaga Agency, Correspondence Regarding Charges of Bigamy Against Catherine (Brant, Fuller) Sero, lac.
23 Morris, “Charles Ora Card,” 172; “Untitled,” Omaha Daily Bee, 12 November 1888, 4; Carter, The Importance of Being Monogamous, 56.
24 “Elizabeth J. Coleman, Mother of 12 Charged with Bigamy after Obtaining an American Divorce and Remarrying,” 25 April 1908, British Columbia, Dept. of the Attorney-General, T 0429, microfilm bo 9323, box 15, file 3, 1793/08, British Columbia Archive (bca).
25 Everett J. Wallace to F.P. Sargent, 15 September 1906, rg 85, ins, entry 9, box 115, 51630/48, nara.
26 Everett J. Wallace to F.P. Sargent, 15 September 1906; Thomas D'Arcy, “Report of Hearing in the Case of Aliens Detained at Plattsburgh, N.Y.,” 11 September 1906, rg 85, ins, entry 9, 51630/48, nara.
27 Moloney, National Insecurities, 4.
28 Luibhéid, Entry Denied, 11.
29 “Shows Exclusion to Be Necessary: Senator Fairbanks Points Out the Dangers from Chinese Labor,” The Call (San Francisco, ca), 6 April 1902, 17, Library of Congress; Kerry Abrams, “Polygamy, Prostitution, and the Federalization of Immigration Law,” Columbia Law Review 105, no. 3 (2005): 643, 653–4, 698; Smearman, “Second Wives' Club,” 393–4; Andreas, Smuggler Nation, 212; Cott, Public Vows, 148–9, 153, 163.
30 Catherine Carstairs, “Deporting ‘Ah Sin' to Save the White Race: Moral Panic, Racialization, and the Extension of Canadian Drug Laws in the 1920s,” Canadian Bulletin of Medical History 16, no. 1 (1999): 75–82; Canada, “An Act Respecting Chinese Immigration, 1923,” 13–14 George V., Chap. 38, § (1923), http://eco.canadiana.ca/view/oocihm.9_08043.
31 Unterman, Uncle Sam's Policemen, 178; Barbara Roberts, Whence They Came: Deportation from Canada, 1900–1935 (Ottawa: University of Ottawa Press, 1988), 12–13.
32 Roberts, Whence They Came, 12.
33 Roberts, Whence They Came, 49, 69–70, 99, 122–3, 129.
34 Moloney, National Insecurities, 8, 111, 243.
35 us District Court for the District of Montana, “Findings of Fact Re: Na Lay which Ordered Her Deportation,” 13 March 1906, rg 21, Records of District Courts of the United States, 1685–2009, Criminal Case Files, 1889–1961, U.S. vs. Na Lay alias Annie Kum Chee, 1904–7, nai 298179, nara.
36 “The Deportation of Na Lay,” Billings (mt) Gazette, 21 February 1908, 4.
37 us District Court for the District of Montana, “Depositions Taken in the Case of U.S. v Na Lay,” 1906, rg 21, Records of District Courts of the United States, 1685–2009, criminal case files, 1889–1961, U.S. vs. Na Lay alias Annie Kum Chee, 1904–7, nai 298176, nara.
38 J. Henry Scattergood to Harry E. Hull, 22 September 1930, rg 85, ins, entry 9, box 6586, 55466/182b, nara.
39 Edward Bristow to Jesse E. Flanders, 30 December 1908, rg 75, bia, Letters received – Tulalip Agency, Swinomish, box 8, folder 4, na pnr.
40 Cole, “Reports of Agents in Washington,” 491; Bristow to Flanders, 30 December 1908.
41 Sarah Carter, “‘Complicated and Clouded': Federal Administration of Marriage and Divorce among the First Nations of Western Canada, 1887–1906,” in Unsettled Pasts: Reconceiving the West through Women's History, ed. Sarah Carter, Lesley Erickson, Patricia Roome, and Char Smith (Calgary: University of Calgary Press, 2005), 164.
42 Bristow to Flanders, 30 December 1908.
43 James Monture to J.A. McDonald, 16 April 1883, rg 10, Indian Affairs, vol. 2210, file 42, 274, Six Nations Agency – Correspondence Regarding Cayuga Chief James Monture's Complaint that his Illegitimate Child has been Left Off the Annuity Paylist (hereafter Monture's Complaint), lac.
44 Unsigned to J.T. Gilkison, “Draft,” 7 May 1883, Monture's Complaint, lac.
45 Canada, “An Act to Amend and Consolidate the Laws Respecting Indians, May 7, 1880,” 205.
46 Carter, The Importance of Being Monogamous, 170.
47 E.B. Merritt to Secretary of the Interior, 10 November 1923, rg 75, Tulalip Agency, Records of Court of Indian Offenses 1907–1947, folder 1, na pnr.
48 Merritt to Secretary of the Interior, 10 November 1923.
49 Merritt to Secretary of the Interior, 10 November 1923.
50 A.O. Comire to Secretary of the Department of Indian Affairs, 8 January 1904, rg 10, vol. 2804, file 161,622, Pierreville Agency – Correspondence Regarding Illegitimate Children, Annuity Paylists, Debts, Welfare and Charges Brought Against Indians of the Abenakis of Saint Francis Reserve, lac.
51 George Frederick Harman, Reports of Cases Decided in the Court of Common Pleas, ed. Christopher Robinson, vol. XXXI (Toronto: Roswell & Hutchison, 1881), 503–5; A.W. Browne to John A. Macdonald, 3 October 1881, rg 13-A-2, vol. 51, no. 1521, lac.
52 John Bassett Moore, Report on Extradition with Returns of All Cases from August 9, 1842 to January 1, 1890 and an Index (Washington: Government Printing Office, 1890), 176, 185, 190; Browne to Macdonald, 3 October 1881; “The Extradition Question: Necessity for a Treaty to Include Many Serious Crimes Not Now Extraditable,” Sun (New York), 15 January 1883, 1; “Canada Has a Grievance: A Difference Between the United States and That Province,” Sun (New York), 14 January 1883, 1; Harman, Reports of Cases Decided in the Court of Common Pleas, XXXI: 493–511.
53 Prior to the Balfour Declaration in 1926, the United Kingdom largely controlled Canada's foreign relations and signed treaties on its behalf. Bassett Moore, Report on Extradition, 27; United Kingdom and United States, “Treaty Series No. 18 (1922), Supplementary Extradition Convention between the United Kingdom and the United States,” 1922, 1922 Sess. II, vol. IV.787, ch microfiche 130.37, House of Commons Parliamentary Papers Online; United States of America and United Kingdom, Treaty Series No. 5, 1901, Convention between the United Kingdom and the United States of America for the Mutual Extradition of Fugitive Criminals (London: Harrison and Sons, 1901); United States and Great Britain, “Extradition Treaty between the United States of America and Great Britain and Exchanges of Notes Extending the Applicability of the Treaty to Palestine and Trans-Jordan,” 1932, Organization of American States, https://www.oas.org/juridico/mla/en/traites/en_traites-ext-usa-guy.pdf.
54 The extradition warrant for perjury created legal challenges of its own because the treaties between Great Britain and the United States listed perjury as an extraditable crime in 1886 but not in 1889. Previous legal rulings, such as by Judge Wurtele in Quebec, however, had supported the idea that the 1886 and 1889 extradition agreements should be considered in concert rather than as exclusive from one another, opening up the possibility for extradition. “Nation Reaches After Collins,” The Call (San Francisco, ca), 22 July 1905, 6.
55 “Commits Collins for Extradition,” Ladysmith (bc) Daily Ledger, 31 August 1905; “Collins Struggles in Canadian Court to Gain His Freedom,” The Call, 14 July 1905, 2; “George D. Collins Is Convicted of Perjury by His Jury,” The Call, 28 February 1906, 1–2; “Our Victoria Letter,” Fernie (bc) Ledger, 6 September 1905, 3.
56 “Our Victoria Letter,” 3.
57 “Collins Must Face Accusers: Victoria Judge Holds that the Crime of Perjury Is an Extraditable Offense,” The Call, 20 August 1905, 28.
58 Acting D.M.J. to Charles Wilson, “Collins Extradition,” October 1905, Attorney General Records, T 0429, microfilm bo 9322, box 12, file 4, 3102/05, bca.
59 “Collins Off to Frisco,” Ladysmith (bc) Daily Ledger, 23 October 1905, 1.
60 “Lawyer Will Be Started for San Quentin Today: Bay City Attorney Sentenced to Penitentiary for Fourteen Years Must Serve Term,” Los Angeles Herald, 16 June 1909, 5; “Collins Seeks Release on Habeas Corpus,” The Call and Post (San Francisco, ca), 22 December 1913, 3; “Collins' Sentence,” Ladysmith Daily Ledger, 15 March 1905, 1.
61 Neal R. Feigenson, “Extraterritorial Recognition of Divorce Decrees in the Nineteenth Century,” American Journal of Legal History 34, no. 2 (1990): 120, 137.
62 Constance B. Backhouse, “Married Women's Property Law in Nineteenth-Century Canada,” Law and History Review 6, no. 2 (1988): 211–14; Beverly Schwartzberg, “‘Lots of Them Did That': Desertion, Bigamy, and Marital Fluidity in Late-Nineteenth-Century America,” Journal of Social History 37, no. 3 (2004): 573–5; Feigenson, “Extraterritorial Recognition of Divorce Decrees in the Nineteenth Century,” 153; Carter, The Importance of Being Monogamous, 75; Moloney, National Insecurities, 35.
63 “Abducted Children to Be Extradited in June,” Ladysmith (bc) Daily Ledger, 5 March 1906; John W. Lacey to F.S. Hussey, 4 January 1906, Attorney General Records, T 0429, microfilm bo 9322, box 13, file 1, 94/06, bca; “Sues for Children,” Semi-Weekly Boomerang (Laramie, wy), 8 January 1906, 3.
64 Fred Tytler to D.A. Reavill, 10 March 1906, Attorney General Records, T 0429, microfilm bo 9322, box 13, file 2, 787/06, bca.
65 Lacey to Hussey, 4 January 1906; F.S. Hussey to H.A. Maclean, 8 January 1906, Attorney General Records, T 0429 microfilm bo 9322, box 13, file 1, 94/06, bca; D.A. Reavill to Frederick John Tytler, 5 March 1906, Attorney General Records, T 0429 microfilm bo 9322, box 13, file 2, 787/06, bca; “Escaped in Launch: Further Details of Offense for which Wyoming Man May Be Extradited,” Wyoming Tribune (Cheyenne, wy), 29 November 1905; Canada, Census Office, “Tytler Fred J. L., Age 52,” 1901, bc, District 1, Burrard, Subdistrict Vancouver D-3, item 154477, p. 19, lines 41–4, lac.
66 John Lacey to F.S. Hussey, 22 December 1905, Attorney General Records, T 0429, microfilm bo 9322, box 13, file 1, 94/06, bca; A.H. Maclean to Acting Attorney General, “Tytler Extradition Proceedings 1906,” 30 November 1906, Attorney General Records, T 0429, microfilm bo 9322, box 13, file 1, 235/06, bca; Frederick L. Tytler to Attorney General, Victoria, 10 March 1906, Attorney General Records, T 0429, microfilm bo 9322, box 13, file 2, 787/06, bca; Reavill to Tytler, 5 March 1906.
67 “The Baltimore Kidnaping: Mrs. Perot Thought to Have Sailed with the Child for England,” Times (Washington, dc), 19 July 1899; “Extradition for Mrs. Perot,” Evening Star (Washington, dc), 22 July 1899, 9; “The Perot Case Settled,” Alexandria (va) Gazette, 16 August 1899, 2; Maureen Dabbagh, Parental Kidnapping in America: An Historical and Cultural Analysis (Jefferson, NC: McFarland & Company, 2012), 155–6.
68 Inspector Hurley, Inspector Davis, and McNeal, “Board of Special Inquiry Meeting Held at Newport, Vermont,” 7 October 1926, rg 85, ins, entry 9, box 6585, 55466/159, nara.