A history of U.S. Commissioners in Alaska
(From the September-October, 2002 edition of the Alaska Bar Rag)
By Paul Barrett
From 1884 to 1959 United States Commissioners were, in large part, the embodiment of the federal government in Alaska. U. S. Commissioners, as representatives of the federal government, were not unique to pre-statehood Alaska.
However, due to its size and its sparse and scattered population, Alaska was probably more dependent on the Commissioner form of government than any other U. S. possession. The question to be answered here is: How well did the Commissioner system work in actual practice in Alaska?
To answer this question, we first examine the Commissioner system in theory, i.e. as it was designed and intended to function. From there we examine the actual day-to-day operation of a particular Commissioner's office. Specifically, we examine the functioning of the three U. S. Commissioners to have served Otter Precinct, from its principal town of Iditarod, between 1910 and 1920.
Scrutiny of the Commissioner system in actual operation certainly reveals some flaws which, however, were fairly few and minor. In actual fact and in daily practice the Commissioner system was highly effective and efficient in delivering a well functioning government to the remote and transient settlements of early rural Alaska.
II. The Role Of U. S. Commissioners As Government In Alaska
When the United States purchased Alaska from Russia in 1867 it created a military government to govern its newest possession. What little 'government' there was in Alaska was provided first by the U. S. Army, then (briefly) by the U. S. Revenue Cutter Service, and next by the U. S. Navy.
Given Alaska's tiny non-Native population, its cries for a civil government were easily ignored, if heard at all. Then, in 1880, gold was discovered near Juneau and hundreds of would-be miners flocked to the area. This event, small as it was, attracted attention to Alaska and its desire for a civil (non-military) government.
In 1884 Congress passed the first Organic Act, which provided the first civil government for Alaska. Alaska was deliberately designated as a 'district', not a 'territory', and no modicum of self-government was provided. Under the Act the President appointed a single federal judge for the district. The judge was to be assisted by 'Commissioners' who were also appointed by the President. (The law was later changed such that District Judges appointed the Commissioners.) The Commissioners were delegated limited jurisdiction and certain judicial and quasi-judicial duties. These Commissioners, more than any other class of government officials, quickly came to represent the day-to-day functioning of civil government in Alaska. Their number, originally only four, grew as gold strikes were made, and new communities sprung up around the 'district.'
The Commissioner, being the principal representative of government in a frontier land, had duties many and varied. The Commissioner was an ex-officio justice of the peace, an official recorder of documents, a probate judge, a notary public and was expressly authorized to administer oaths and take testimony 'in any action or proceeding.'(1)
As justice of the peace a Commissioner had civil jurisdiction in cases and controversies of up to $1,000 and criminal jurisdiction over misdemeanors. Explicitly included were: larceny punishable by confinement in the 'county jail;' and assault and battery not with intent to commit a felony or 'in the course of a riot' or upon a peace officer, (which offenses presumably were felonies).(2) Additionally the Commissioner was the coroner and, when presented with an unclaimed body, was responsible to see that it was 'plainly and decently buried,' no mean feat in the dead of winter.(3)
As probate judge the Commissioner not only had jurisdiction over decedents' estates, but was also responsible for 'minors, lunatics and habitual drunkards. . . .'(4) When conducting a sanity proceeding the Commissioner was required to appoint 'some suitable person to appear for and represent' the person charged with insanity.(5) Dealing with insane persons, especially those who had not committed a crime, was a major problem in early Alaska.(6)
To secure his faithful performance of these myriad tasks, the Commissioner was obliged to post a $1,000 surety bond. He was also required, at his own expense, to provide himself with an 'official impression seal,' presumably to legitimize his official acts. As compensation, in lieu of salary, he was empowered to charge 'fees' for various services.
After extensive reporting and accounting functions were completed, the Commissioner was paid out of the fees he collected. From the fees, he was paid up to a maximum of $3,000 per year with any excess being retained by the district court. Costs for office help and office expenses were paid by the District Court, but the Commissioners were instructed that such costs were to 'be kept at the lowest practicable point.'(7)
Paying a judicial officer exclusively through fees collected, of course, created potentially significant conflicts of interest. For example, the more criminal cases that were prosecuted, the more fees were generated. Because criminal defendants paid 'costs' only if they were convicted, the presumption of innocence may have become a rule honored in the breach. There is no evidence, though, that such was the case. Since the maximum annual compensation of $3,000 was considered very low, the Commissioners had every incentive to see that they recovered at least that much in fees each year.
However, once the compensation maximum had been reached in a given year, that Commissioner had little incentive to generate any additional fees. This fee-based system of compensation prevailed, despite efforts by President Theodore Roosevelt to change it, and the governor of Alaska denounced it as 'an abomination.'(8) Nevertheless, there was no apparent shortage of people, typically lawyers, willing to settle for a relatively secure cash income by serving as Commissioner. Furthermore, this system was probably based on political necessity, since the federal government spent far more in governing Alaska than it received in tax revenues from those so governed.
With the enactment of the second Organic Act in 1912 Alaska became a 'territory' and was given limited self-government via the Territorial Assembly (legislature). The structure and working of the Commissioner system, however, was largely unchanged and remained in place until statehood.
III. Three Commissioners In Action--Iditarod, 1910-1920--A Snapshot
In the years following the Klondike stampede of 1897-98, several smaller gold strikes were made throughout Alaska. With each such strike a town sprung up. One strike, in 1909 on the Iditarod River, led to the founding of the town of the same name. Located about 400 miles southwest of Fairbanks, Iditarod, despite its remoteness, evolved seemingly overnight. While probably never very cosmopolitan, Iditarod boasted a variety of public accommodations (including 'the Row,' a red light district), a hospital, telegraph service and a federal jail. By 1910 Alfred E. Maltby had been appointed Commissioner of the newly formed Otter Precinct, headquartered at Iditarod. Within about a year E. M. Stanton succeeded him who, in turn, was replaced by George W. Albrecht in 1912.
Commissioners were superb at the fair and efficient resolution of criminal cases, often under difficult circumstances. While the Iditarod community seems to have been served by several lawyers, there was no designated prosecuting attorney. The complaining witness, usually the purported victim, became known as the 'private prosecutor.' In the absence of the private prosecutor the trial could not proceed.(9) Frivolous and malevolent accusations were discouraged. If a defendant was acquitted and the Commissioner found that the prosecution was malicious or lacked probable cause, the Commissioner (sitting as justice of the peace) could enter a civil judgment against the complainant/private prosecutor for costs. If necessary, the Commissioner could even refuse to accept a criminal complaint unless the complainant first posted security for any eventual award of costs.(10)
Peoples' true names were not always widely known, and many were known only by nicknames, so it was common that prosecutions started as simple 'John Doe.' Generally, the defendant's real name was discovered and substituted during the course of the proceedings.
One such John Doe prosecution turned out to be against one Doctor Zuckerman, who was charged with larceny of a tent, rifle, ax and shovel.(11) Larceny was a common charge. Less common charges in 1910-1911 included: gambling; assault and battery (including occasional instances of wife beating); assault with a dangerous weapon; 'threatening homicide;' vagrancy; robbery (of four diamond rings, in one case); blackmail; malicious destruction of property; unlawfully selling game birds (one restaurant's specialty du jour); and even 'using profane and obscene language.'(12) All were processed to a final disposition.
Justice delayed, the maxim says, is justice denied. This was especially true in the transient camps, like Iditarod, served by Commissioners. The necessity of swift justice was not lost on the Commssioners. In the typical prosecution at Iditarod, an arrest warrant was issued the same day as the complaint was filed. Since complaints tended to be filed promptly, and travel out of the area was slow and difficult, arrests were usually made within a day or two of the issuance of the warrant. Arrestees not able to post bail were held in the Federal Jail at Iditarod. The trial was generally held, if a not guilty plea was entered, about one week following the arrest. If the defendant wished a jury he could demand one, in which case the local Deputy U. S. Marshal simply rounded up 12 (sometimes fewer) available male citizens and the trial was held.
Civil litigation also proceeded at a near lightning pace. In E. R. Anderson v. Pacific Cold Storage Company the complaint was filed on April 1, 1915. On April 8th the defendant's demurrer (i.e. motion to dismiss for failure to state an actionable claim) was denied and trial was set for April 14th. On April 13th the defendant waived a jury. On April 14th the plaintiff filed an amended complaint. A bench trial ensued, and was completed that day. Judgment entered for the defendant, and the hapless plaintiff was ordered to pay $10.20 in costs.(13) Thus, litigation which would have consumed at least a year in today's system was taken to judgment in 14 days in 1915!
The seriousness of the cause did not seem to slow the speed of the process. In the 'Inquiry as to the Sanity of Harry T. MacLean' an information was filed on June 15, 1915 charging MacLean with insanity. On June 17th a warrant was issued. On June 21st Commissioner Albrecht appointed Charles E. Taylor (a lawyer then himself serving as Commissioner in nearby Flat) as MacLean's counsel. Trial, before a jury of six, commenced that same day. The government called eight witnesses; the defense called none. At day's end the jury, by verdict, found MacLean 'really and truly insane. MacLean was committed to the custody of the Deputy U.S. Marshal for delivery to Morningside Hospital at Portland, Oregon.(14) Presumably the jurors each received the standard allowance of $4 and the witnesses received $3 each for their attendance at court.(15) At the time the cost of even a frugal living in Fairbanks was $5 per day, and doubtless was higher in a remote camp.
Few social problems are as corrosive to order in a mining camp as crime. To be effective, Commissioners had to be strong-handed in dealing with criminals. So if Iditarod justice was swift, it was also stern. Criminal defendants commonly drew long jail sentences for seemingly minor offenses by today's standards. And the available records make no mention of any parole or probation system. One defendant, upon conviction of 'petty larceny' (i.e. property valued at less than $35) drew the maximum allowable sentence of one year in the local federal jail.(16)
Indolence was recognized as a breeding ground for crime and was not tolerated. One George Bennett, who pleaded guilty to 'being an idle person without visible means of living or lawful occupation or employment. . .' was sentenced to 25 days in jail, and a fine of $130 and costs of $15.65. Anticipating that Mr. Bennett might be unable to pay the fine and costs, the Commissioner thoughtfully provided that, in lieu thereof, he would spend an additional 90 days in the jail.(17)
The Commissioners were often compelled to preside over trials in which there was no trained prosecutor. In 1912 District Judge Peter Overfield in Fairbanks authorized Commissioner Stanton to appoint private attorneys to prosecute criminal cases in the name of the government, but only if 'absolutely necessary to secure justice' and then subject to an unrealistic maximum fee of $25 per case.(18) In fact, according to Commissioner Albrecht, 'one defense (is) worth several prosecutions, in the way of fees.'(19) The result was that few misdemeanor cases were prosecuted by lawyers. As Albrecht explained to R. F. Roth, the Assistant U. S. Attorney at Fairbanks in 1914:
"The town is overly supplied with lawyers and every criminal case is bound to be fought vigorously, and with more or less ability, and the experience of the past shows . . . that convictions cannot be had without a good attorney for the Government."(20)
On occasion the Commissioner had to 'help out' the government when an apparently meritorious prosecution was faltering. As Albrecht reported to Roth: 'In communities where there are no lawyers the commissioner may handle both sides, and get along; but a vigorous defense by a fairly able lawyer inevitably forces the court into the very unpleasant predicament of seeming to prosecute, or sit by and see the Government absolutely without a case.'(21) Evidently Commissioner Stanton had felt the same pressure. In reporting to the U. S. Attorney on a preliminary hearing held in a robbery case, Stanton noted that he told the key witness to tell all he knew 'or I would do my best to put him up against a perjury charge.' When the witness remained recalcitrant, at least in Stanton's view, 'I went after him as strong as I possibly could, and a good deal stronger perhaps than the strict rules allow.'(22) Clearly, the Commissioners recognized that strict adherence to judicial propriety was inappropriate in their circumstances. They elected to place substance before form.
Many Commissioners, including those in Iditatrod, were attorneys in their own right. As such they were permitted to practice privately, but with the helpful admonition that they must never serve simultaneously as both lawyer and judge in the same case. Likewise, they were not to sit in judgment on the cases of their law partners.(23) Not surprisingly, Commissioners frequently supplemented their incomes by venturing into other precincts to prosecute cases. As a result, an unusual alliance sometimes developed between the Commissioner and the U. S. Attorney.
Commissioner Stanton periodically reported to the U. S. Attorney in Fairbanks on the status of pending cases and investigations then underway. In one such report in 1911 he mentioned having unsuccessfully prosecuted a 'blind pig' case in the Commissioner's Court in nearby Flat:
"The jury seem (sic) to have gone on the theory that the defendants being Druggists should be allowed to sell a little any way.' He also noted that crime was low and was expected to remain so as 'most of the old trouble makers have gone to [the new boom town of] Ruby."(24)
Even such elementary court functions as transcript preparation were difficult in a camp such as Iditarod. In reporting on the preliminary hearing in a felony hold-up case, Stanton forwarded to the U. S. Attorney a 'transcript,' but with this disclaimer:
'Miss Anderson is of course not an experienced reporter, but she was at that time the only person here whom I relied upon...Mrs. Peterson took the testimony for the other side...but as Mrs. Peterson was strongly prejudiced in favor of (the defendants) I do not think it would be prudent to rely [on her portion of the transcript.]"(25)
The Commissioner also was effective in serving as Coroner, despite great difficulties. In the case of the double murder of the Nelson brothers, at Kuskokwim, Stanton was unable to get a doctor willing to go to that camp to do autopsies on the bodies. Concluding that the bodies would need to be transported to Iditarod, Stanton dispatched the Deputy U. S. Marshal to do so quickly, for to delay raised the 'danger of losing the bodies on the first high water.' He noted that both bodies were badly decomposed. With frontier practicality, though, he concluded that the decomposition would not compromise the autopsy 'as both men were shot through the head' anyway.(26)
In addition to their statutory duties, the Commissioners at Iditarod (and, doubtless the other camps) became the 'government by default' whenever some bureaucratic action was required. The Iditarod Commissioners, at various times, authorized the formation of posses, assisted in locating missing persons, appointed 'road overseers,' reported on mining accidents, oversaw collection of the new 'Road Tax,' processed timber cutting applications, provided assistance to 'indigent and incapacitated persons,' disseminated fire prevention posters, gave notice to consular officials of the deaths of foreign nationals in the precinct, and reported on the activities of known or suspected German sympathizers during World War I.(27)
Following passage of the second Organic Act in 1912, Alaska became a 'territory' with its own territorial legislature, called the Territorial Assembly.
That body, of course, passed laws, some of which it apparently expected the U. S. Commissioners (who worked for the U. S. District Court, not the Territory) to execute. One of these was the 'poll tax' enacted by the new legislature. In July, 1913, the new territorial treasurer instructed the various Commissioners to post bonds and to collect the poll tax enacted by the first session of the Territorial Assembly. The tax was $4 per male citizen between the ages of 21 and 49, inclusive. Commissioner Albrecht understandably rebelled. He noted the collection difficulties, including that 'hundreds (are) leaving every week for the new strikes . . .' and that the tax 'is obnoxious to nearly everyone and not ten per cent of those subject to it would ever pay . . . .'(28) Shortly thereafter he was spared this task when the U. S. Attorney General opined that Commissioners were not authorized to collect license fees (and, presumably, taxes) imposed by the new territory. Furthermore, the commissioners were not to serve as Registrars of Vital Statistics for the territory.(29)
Elections, of course, were major events in isolated mining camps like Iditarod. Few governmental processes are more important to a democracy than fair and open elections. The Commissioner was responsible for the conduct of elections within his precinct. With the coming 1912 election of a delegate to Congress, and, for the first time, two territorial Senators and four Representatives, Commissioner Stanton set up the election precincts within the Otter Precinct.
The precincts were required to have a minimum of 30 voters each. Stanton also appointed an election judge for each precinct. Although not a majority party, the Socialist Party was well represented in the area and was active in the election. At the time the population of Otter Precinct was estimated by the Commissioner to be about 800, including one physician and one undertaker, but no clergymen.(30) In the Congressional race former Judge James Wickersham was the likely local favorite, having won handily in 1910. (In fact, Wickersham felt that he had so many friends in the Iditarod area that he bypassed it entirely in his 1910 campaign travels.)(31)
Another obstacle that Commissioners routinely overcame was the ever-present bureaucratic 'red tape.'
Many regulations and policies were not logically suited for application in a remote setting. For example, the U. S. Treasury Department refused to waive a requirement that Commissioners' accounts be sworn to under oath, despite the fact that the Commissioner himself was often the sole person in the area authorized to administer oaths. The requested waiver was denied, but only because the requirement was statutory and nonwaivable.(32)
Commissioner Stanton, finding himself the victim of such red tape, wrote directly to the Attorney General in Washington, D.C. for relief. Stanton had been compelled to travel from Iditarod to Dikeman (another mining camp in Otter Precinct) to conduct an inquest 'on the body of Rupert Lindner.' Stanton sought reimbursement for travel expenses in excess of the standard allowance of 15 cents per mile. His transport was by river launch, which ran on no schedule but departed only when enough passengers were waiting to make the trip profitable. The trip down river to Dikeman cost $10 and Stanton was obliged to remain there overnight for want of sufficient return passengers. When the launch did finally depart the next day he was charged $20 for the return trip, that being against the current.
Stanton pointed out that these travel expenses, necessarily incurred but well in excess of the allowable, would come from his own pocket unless reimbursed. He explained to the Attorney General that winter travel was also very expensive, moreso than the permitted allowance, given that dog teams 'must be hired . . . and fed at great expense . . . ' This was especially unfair, he complained, given the nature of the country and the fact that people frequently died in remote and inconvenient venues. His plea, however logical, was rejected as there was no room in the law for differing interpretation.(33) He, like his brethren, seems to have simply 'made do' and went on with the affairs of his office.
The Commissioner form of government worked extremely well in practice in the rural mining camps of early Alaska. At a time and place where one might have expected near anarchy, the daily business of government was effectively conducted. Indeed, the Commissioners seemed to create a sense of normalcy in a setting that was anything but normal.
Admittedly, the system was not without flaws. Commissioners' compensation was probably too low and the fee-based pay formula was rife with built-in conflicts of interest and improper incentive and disincentives. Further, Commissioners were required to abide by regulations and policies not logically tailored to the transaction of governmental affairs in frontier outposts.
These flaws, however, were overcome and the daily operation of government proceeded apace. Simply stated, the system worked. Public order was maintained, criminals were quickly and sternly punished, and disputes were resolved. Fair and open elections were held, taxes were collected, insane persons were identified and humanely treated. Important documents were created and recorded. All of this the Commissioner routinely accomplished. In addition, he safeguarded the national security and maintained a minimal safety net under the unfortunate and incapacitated. In effect, the Commissioner was the living personification of effective government in the remotest of locales and under the most difficult of circumstances. While not perfect in every respect, the commissioner system was probably the best that a cumbersome and distant federal government could devise for Alaska, and would have been difficult to improve upon.
1 Instructions to United States Judges, Marshals, Attorneys, Clerks and Commissioners for the District Of Alaska, Effective July 1, 1911 (Washington, D. C.:US Government Printing Office, 1910), 233; hereafter cited as Instructions.
3 Ibid., 239.
4 Ibid., 241-242.
6 See generally: Claus-M. Naske, A History of the Alaska Federal District Court System, essay entitled 'Taking Care of Alaska's Insane', (July, 1985).
7 Ibid., 243
8 Claus-M. Naske, 'The United States Commissioners in Alaska,' Pacific Northwest Quarterly, Vol. 89, No. 3 (Summer 1998).
9 Instructions, 234.
10 Ibid., 234-235.
11 Roy M. Percival - Flat, Alaska Collection, folder 6, University of Alaska (Fairbanks) Archives.
13 Ibid., folder 57.
14 Ibid., folder 62.
15 Ibid., folder 47.
16 Percival Collection, folder 27.
17 Ibid., folder 35
18 Ibid., folder 65.
19 Ibid., folder 45.
21 Ibid., folder 45.
23 Instructions, 237.
24 Percival Collection, folder 65.
27 Ibid., folders 66-67.
28 Ibid., folder 66.
29 Ibid., folder 67.
30 Ibid., folder 65.
31 James Wickersham diaries, University of Alaska (Fairbanks) microfilm archives #18, reel 4, 196.
32 Perciavl collection, folder 65.