A Potted Legal History of the Bisbee Deportation of 1917
A Potted Legal History of the Bisbee Deportation of 1917
In the summer of 1917, the town of Bisbee, Arizona illegally arrested and deported 1,186 people to New Mexico. Most of the deportees were United States citizens and members of the Industrial Workers of the World (“IWW”). They were deported because they were on strike against the mining companies that ruled Bisbee. The mining companies used the IWW’s opposition to WWI to tar the strikers as unpatriotic saboteurs and justify their deportation. But the Bisbee Deportation of 1917 also infuriated progressives and encouraged them to support organized labor.
Bisbee, Arizona was founded in 1880, and named after Judge DeWitt Bisbee, an investor in the nearby Copper Queen mine. It soon became the commercial center of the Warren mining district in Cochise County, home of the richest copper deposits in North America. By 1910, Bisbee was booming, and had more than 9,000 residents.
But Bisbee was essentially a company town. While the Warren mining district was home to many copper mines, the biggest and most productive mine by far was the Copper Queen, owned by the Phelps Dodge Corporation, one of the largest mining companies in the world. Phelps Dodge also owned most of Bisbee, including the local newspaper.
Labor & the Great War
In the late 19th century, the Western Federation of Miners (“WFM”) organized the miners of the American West. Initially, the WFM was affiliated with the Industrial Workers of the World (“IWW”), a radical union that rejected capitalism. But in 1907, the WFM left the IWW and joined the American Federation of Labor (“AFL”), a moderate union that accepted capitalism. The WFM’s defection was a serious blow to the IWW, which lost about a third of its members.
In 1916, the IWW saw an opportunity to regain those members. As the United States prepared for war, copper prices began to rise. The WFM had reconstituted itself as the International Union of Mine, Mill, and Smelter Workers (“IUMMSW”) and led a successful strike in Clifton, Arizona. But many IUMMSW members were more radical than their union. The IWW formed the Metal Mine Workers Industrial Union 800, which took over the Bisbee Miners’ Union (IUMMSW Local 106). Suddenly, the IWW was in charge again.
On April 6, 1917, Congress declared war on the Imperial German Government, and demand for copper skyrocketed. The IWW issued a resolution condemning the war and calling for a general strike: “We condemn all wars, and for the prevention of such, we proclaim the anti-militaristic propaganda in time of peace, thus promoting class solidarity among the workers of the entire world, and, in time of war, the general strike, in all industries.” But many people considered the IWW’s opposition to the war unpatriotic, and anti-IWW sentiment began to grow.
The Bisbee Deportation of 1917
On the afternoon of June 26, 1917, an IWW grievance committee presented a list of demands to Phelps Dodge:
- The abolition of the physical examination.
- Two men to work on machines
- Two men to work together in all areas
- To discontinue all blasting during the shaft
- The abolition of all bonus and contract work
- To abolish the sliding scale. All man under ground a minimum flat rate of $6.00 per shift. Top men $5.50 per shift.
- No discrimination to be shown against members of any organization.
The company refused to meet with the grievance committee, and called its demands a “treasonable” attempt to sabotage the war effort.
In response, the IWW called a strike. On the morning of June 27, about 80 percent of the copper miners in Bisbee joined the strike, and copper production plummeted. The mining companies denounced the strike, and Cochise County Sheriff Harry C. Wheeler announced that, if necessary, he would deputize a posse to maintain order. On June 30, Wheeler wired Arizona Governor Thomas Edward Campbell and asked for federal troops. Campbell relayed the request to Major General H. A. Greene, who sent an Army officer to investigate, but the officer reported that the strike was peaceful and federal troops were unnecessary.
The IUMMSW refused to join the strike, and the American Federation of Labor (“AFL”) repudiated it, accusing the mining companies of using the IWW to discredit organized labor. By July 8, the strike was beginning to fail. Many miners had returned to work, and the mines were working at half-capacity.
In 1916, local businessmen had formed the Business Men’s Protective Association, in order to oppose organized labor, and soon after the strike began, workers formed the Workmen’s Loyalty League for the same purpose. On the night of July 11, Wheeler called a meeting of the Protective Association and the Loyalty League, which had a combined total of about 3,000 members in the area. Mining company officials also attended the meeting, including Walter Douglas, the President of Phelps Dodge. Douglas issued a statement denouncing all organized labor and calling for the deportation of the strikers: “There will be no compromise because you cannot compromise with a rattlesnake. That goes for both the International Union and the IWW.” Wheeler formed a posse of about 2,000 members of the Protective Association and Loyalty League to arrest and deport the strikers. Wheeler did not tell Campbell about his plans, and seized the local telephone and telegraph offices to prevent news of the arrests from leaking prematurely.
At 6:30 a.m. on July 12, Wheeler issued a proclamation stating that he had formed a posse to arrest “on the charges of vagrancy, treason, and of being disturbers of the peace of Cochise County all those strange men who have congregated here.” The proclamation claimed that “so-called strikers” were “harassing and intimidating” anyone still working in the mines, and that people had been “assaulted and brutally beaten.” It also alleged an anti-government conspiracy: “This is no labor trouble. We are sure of that; but it is a direct attempt to embarrass the government of the United States.”
The proclamation was printed on the front page of the Bisbee Daily Review and posted around town. At the same time, Wheeler’s posse broke into five bands of armed citizens and began roaming the streets of Bisbee, arresting strikers, as well as suspected IWW members and sympathizers. Anyone deemed “suspicious” was liable to arrest, and the posse arrested at least a dozen people with no connection to the IWW.
The posse rounded up its prisoners in the center of town, then marched them to a baseball field next to the railroad tracks in nearby Warren, Arizona, adding additional prisoners along the way. Two people died during the arrests. When four members of the posse tried to arrest James Brew, he fired through the door of his room, killing posse member Orson P. McRae. When Brew stepped out of his room, the other posse members gunned him down.
Ultimately, the posse arrested 1,186 people. Shortly before noon, the posse ordered its prisoners to board 24 boxcars and cattle cars provided by the El Paso and Southwestern Railroad, a Phelps Dodge subsidiary. At noon, the train left for Columbus, New Mexico, the closest Army post. It was a hot summer day in the desert, and the deportees had limited food and water. Columbus refused to accept the deportees, so the train backtracked to Hermanas, New Mexico, a railroad station surrounded by a few houses, where there was plenty of water, but little food. On July 13, Phelps Dodge sent the deportees a carload of food. And on July 14, the Army took them to Columbus by train, and quartered them in an old Army camp. The deportees were not restrained in any way, and most of them eventually left.
While the deportees could leave Columbus, they could not return to Bisbee. The day after the deportation, the Loyalty League established a network of sentries around the Warren mining district to prevent “undesirables” from entering, and it continued to deport IWW members and sympathizers. On July 19, the Loyalty League declared that “strangers” could not enter the Warren mining district without a “passport” issued by the Douglas, Arizona Chamber of Commerce. At the request of Governor Campbell, the Loyalty League allowed certain state officials to issue “passports” as well, but still insisted on vetting anyone seeking employment or intending to stay for an extended period of time. In August 1917, the Arizona Federation of Labor tried to send a committee to Bisbee, but the Loyalty League turned it away. When IWW lawyer Frank N. Moore tried to visit Bisbee in late July, the Loyalty League deported him. And when deportees returned to Bisbee to claim their property, Wheeler arrested them for vagrancy and deported them again.
The Protective League and Loyalty League offered an assortment of justifications for the deportations. Wheeler and others insisted the strikers were traitors led by German and Austrian agents, but provided no evidence to support their allegations. The Protective Association and the Loyalty League claimed the strikers were seditious strangers, but in fact most were local homeowners with families. Everyone claimed the strikers were violent, but there is little evidence of any violence associated with the strike, other than the deportation. While Wheeler and his posse may have believed the strikers were dangerous, the evidence suggests they were wrong.
Felix Frankfurter & the President’s Mediation Commission
The IUMMSW and the AFL quickly condemned the arrests and deportations, but did nothing to help the deportees, and attacked the IWW:
We have no sympathy with the I.W.W. movement, but we most emphatically protest against the high-handed method used by the mob who deported all men who were in any way obnoxious to the interest of their bosses, who evidently control the prosecutor’s office, the sheriff’s office, and in fact all other county and state officials, and who will not only permit, but are the instruments with which the high-handed methods are perpetrated.
On September 19, at the urging of former Arizona Governor George W.P. Hunt, AFL President Samuel L. Gompers, and others, President Wilson created the President’s Mediation Commission to investigate:
[T]wo vital aspects of wartime labor policy: 1) the spreading wave of strikes which interfered with the production of goods deemed vital to the war effort, and 2) the growth of labor radicalism associated with the Industrial Workers of the World (IWW), which precipitated widespread state and local repression of labor’s rights and murderous vigilantism.
Secretary of Labor William Bauchop Wilson was the chairman of the Commission, and the four commissioners included two businessmen and two AFL officials. Harvard Law School professor Felix Frankfurter served as secretary and counsel to the Commission.
On October 15, the Commission left for the Arizona mines. Soon after arriving, it resolved many of the ongoing labor disputes and introduced collective bargaining. The Commission also held hearings on the Bisbee deportation. And on November 6, it sent a report to Wilson, concluding that the deportation was illegal and unjustified. The report was prepared by Frankfurter, who was growing increasingly sympathetic to organized labor. As he observed in a letter to Judge Learned Hand:
The manifestations of shoddy patriotism this trip reveals are wide and deep. You would be surprised, even you, [by] the tyrannies that are exercised in the holy name of “loyalty.” . . . The thing is so shallow and so pathetic, as well as brutal. These old bags, who have fought labor and unions as poison for a decade, now wrap themselves in the flag and are confirmed in their old bias . . . by a passionate patriotism. Gee – but it’s awful and then they wonder at the fecundity of the IWWs, the wobblies as they are picturesquely called. They breed the IWWs – they and the neglect of the old fashioned trade unions of the needs of the immigrant, non-English speaking seasonal workers of the West.
On January 9, 1918, the Commission submitted a summary of its findings and dissolved. It was of little benefit to the IWW, which was the target of increasing federal persecution and prosecution under the Espionage Act of 1917. The government was willing to accommodate the moderate AFL, but not the radical IWW. For his part, Frankfurter returned to Harvard, newly committed to progressivism and the protection of minority rights. But after he was appointed to the Supreme Court in 1939, Frankfurter became bettwe known for his commitment to judicial restraint and deference to legislative and executive action.
United States v. Wheeler & the Right of Residence
In May 1918, the United States Attorney for the District of Arizona indicted Wheeler and 21 of his deputies in federal court on charges of conspiracy to violate the Civil Rights Act by deporting 221 United States citizens from Bisbee to New Mexico. Specifically, the indictment alleged a conspiracy to infringe the fundamental constitutional right of citizens of the United States to reside and remain in the state of their choice. The defendants demurred to the indictment, and the court quashed it for failure to allege a federal crime.
The district court found that the indictment alleged kidnapping and false imprisonment under Arizona law, but did not allege kidnapping under federal law, because federal kidnapping law only applied to state action, and the Constitution did not empower the United States to prohibit kidnapping by private actors. Accordingly, the court held that it lacked jurisdiction, because the indictment did not and could not allege a violation of federal law. The court recognized that the action was filed in federal court because the state courts were allegedly biased against the deportees, but observed that improper bias could not create federal jurisdiction.
Essentially, the district court held that it could only exercise jurisdiction over state agents. And it concluded that Wheeler and his posse were not state agents because their actions violated state law, even though Wheeler was a sheriff who purported to deputize a posse. In other words, if state agents exceed their authority under state law, the state is no longer responsible for their actions.
The Attorney General appealed directly to the Supreme Court. Notably, Wheeler was represented before the Supreme Court by Charles E. Hughes, who had resigned from his position as an Associate Justice of the Supreme Court in 1916 in order to run for President, and was re-appointed as Chief Justice in 1930.
On December 19, 1920, in United States v. Wheeler, the Supreme Court affirmed the district court’s holding that the federal courts lacked jurisdiction. It found that citizens of the United States have a fundamental constitutional right to reside and remain in the state of their choice, but the Constitution only authorized the United States to prohibit government action, not private action. And it accepted the district court’s conclusion that Wheeler and his posse were not state agents, because Wheeler acted outside the scope of his authority. Not until fifty years later, in United States v. Guest, did the Supreme Court finally reverse itself and hold that the fundamental constitutional right of residence protects people against both private and state action.
Arizona v. Wootton & the Defense of Necessity
In July 1919, Cochise County Attorney Robert N. French charged 210 members of Wheeler’s posse with kidnapping. Harry E. Wootton, the owner of H.E. Wootton Hardware, was tried as a representative test case. The Cochise County Superior Court judge was disqualified, so the case was heard by Judge Samuel L. Pattee of the Pima County Superior Court. Wootton was represented by Frank E. Curley and William H. Burgess.
After the state presented its largely uncontested case that Wheeler and his posse had arrested and deported the strikers in violation of state law, Wootton pleaded self-defense and necessity, over the state’s opposition. On behalf of Wootton, Burgess offered to prove that the IWW was an anarchic conspiracy formed to overthrow the government, the strike was an effort to sabotage the war effort, the strikers had intended violent action, the government had refused assistance, the strikers could not have been detained in the county jail, and the members of the posse reasonably believed deportation was imminently necessary to preserve the peace. And he argued that these facts justified both self-defense and the defense of necessity.
The court held that Wootton could not plead self-defense, but could plead the defense of necessity. The court observed that the defense of necessity “is ordinarily invoked in cases involving the destruction of property, but in extreme cases may extend to the deprivation of life or liberty.” Under the defense of necessity, a person may infringe the legal rights of another person in order to avoid a serious and irreparable harm, if there is no other way to avoid the harm, and the gravity of the harm exceeds the gravity of the wrong. In any case, the defendant bears the burden of proof, and must show that its actions were reasonable under the circumstances.
Wootton relied heavily on opinions holding that detentions pursuant to a declaration of martial law were justified. But the court observed that martial law had not been declared in Bisbee, and that a warrantless arrest is legal only if the arrestee is promptly taken before a magistrate and a warrant issued. None of the deportees were taken before a magistrate, so none of the arrests were lawful. And if Wheeler acted unlawfully, so did the members of his posse. So the only question remaining was whether their actions were justified by the defense of necessity.
The court held that the necessity is a question of fact for the jury, and allowed Wootton’s defense to proceed. Curley introduced as evidence of necessity an assortment of testimony, depositions, correspondence, and IWW publications, all intended to show that the IWW planned a conspiracy to sabotage the war effort and overthrow the government. Wootton testified that members of the IWW threatened to torch businesses if the strike failed. Other witnesses testified that IWW members had threatened them, or threatened violence, including arson. The publications had titles like War is Hell, The Revolutionary IWW, Sabotage: Its History, Philosophy and Function, and Industrial Unionism: The Road to Freedom.
When the defense finished presenting its case on April 28, 1920, the court instructed the jury:
If the jury believes that other and not unlawful means could have been resorted to by which the threatened peril could have been as well averted and that a reasonable man would, under all of the circumstances, have believed that such other means could as well be adopted, the plea of necessity becomes unavailable.
The jury deliberated for about 15 minutes, before returning a verdict of “not guilty.” After the jury entered its verdict, its members separately explained that they believed the arrests and deportations were justified by the law of necessity. According to the foreman of the jury:
The verdict of the jury is a vindication of the deportation, if not in the legal sense, at least in the moral sense. No man could listen to the evidence adduced during the trial without feeling that the people of Bisbee were in imminent danger, and that, if their fears were ungrounded, yet they were apparently real and pressing.
After the failure of its test case against Wootton, the state declined to pursue further criminal prosecution of Wheeler and the members of this posse. Some of the deportees and their families filed civil actions against an assortment of parties, including individuals and businesses associated with the deportation, with limited success. Nevertheless, outrage over the arrests and deportations fueled progressive outrage for decades.
The Bisbee deportation was illegal and unjustified, but its perpetrators were never punished, and its victims were never properly compensated. The government and the justice system failed in every way. It is a sad reminder of the fragility of civil liberties and the rule of law, especially in times of war.
Brian L. Frye is the Spears-Gilbert Associate Professor of Law at the University of Kentucky College of Law.
Copyright © 2018 Brian L. Frye
Many of the sources below are collected in The Bisbee Deportation of 1917: A University of Arizona Web Exhibit (2005), at http://www.library.arizona.edu/exhibits/bisbee/history/overview.html
United States v. Wheeler, 254 F. 611 (D. Ariz. 1918)
United States v. Wheeler, 254 U.S. 281, 41 S. Ct. 133, 65 L. Ed. 270 (1920)
State v. Wootton, Crim. No. 2685 (Cochise County, Ariz. September 13, 1919)
United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966)
Melvyn Dubofsky, The State and Labor in Modern America (1949)
Gerald Gunther, Learned Hand: The Man and the Judge (2011)
Jonathan D. Rosenblum, Copper Crucible: How the Arizona Miners’ Strike of 1983 Recast Labor-Management Relationships in America (1995)
Department of Labor, Report on the Bisbee Deportations (1918)
Note, The Law of Necessity as Applied in the Bisbee Deportation Case, 3 Ariz. L. Rev. 264 (1961).
George Soule, Law and Necessity in Bisbee, The Nation, August 31, 1921, at 225.
Robert W. Bruere, Copper Camp Patriotism, 106 The Nation 202 (Feb. 21, 1918)
Robert W. Bruere, Copper Camp Patriotism: An Interpretation, 106 The Nation 235 (Feb. 28, 1918)
John H. Lindquist & James Fraser, A Sociological Interpretation of the Bisbee Deportation, 37 Pacific Historical Review 401 (1968)
Marjorie Haines Wilson, Governor Hunt, the “Beast” and the Miners, 15 The Journal of Arizona History 119 (1974)
Phil Mellinger, How the IWW Lost Its Western Heartland: Western Labor History Revisited, 27 Western Historical Quarterly 303 (1996)
Meyer H. Fishbein, The President’s Mediation Commission and the Arizona Copper Strike, 1917, 30 Southwestern Social Science Quarterly 175 (1949)
Fred Watson, Still on Strike: Recollections of a Bisbee Deportee, 18 Journal of Arizona History 171 (1977)
Bisbee Branch I.W.W. Makes Demand On Local Mines; Walkout Called, Bisbee Daily Review, June 27, 1917
Harry C. Wheeler, Sheriff Announces He Will Use Force to Prevent Any Disorders During Trouble, Bisbee Daily Review, June 27, 1917
Statements of Managers, Bisbee Daily Review June 27, 1917
Citizens and Business Men Condemn Action of I.W.W. In Calling Strike As Treason, Bisbee Daily Review, June 28, 1917
Compromise With “Rattlesnakes” Impossible, Declares Douglas, Bisbee Daily Review, July 11, 1917
I.W.W Menace in Warren District Steadily Dying, Bisbee Daily Review, July 11, 1917
The Great Wobbly Drive, The Bisbee Daily Review, July 13, 1917
Deported I. W. W.’s banned from New Mexico, return to Arizona; Deputies and armed citizens load “Reds” on cattle cars, Los Angeles Times, July 13, 1917
Sheriff Calls Americans to Help Oust Disturbers, Los Angeles Times, July 13, 1917
Strike at Bisbee is Practically at End, The Miner’s Magazine [IUMMSW], July 1917, at 3
Protest Arizona Thuggery, The Miner’s Magazine [IUMMSW], September 1917, at 7
The Law of Necessity as applied in State of Arizona vs. H. E. Wootton, Bisbee I.W.W. Deportation Case (c. 1918).
Samuel Morse, The Truth About Bisbee: An account compiled from legal evidence and other authenticated documents of the IWW deportation on July 12, 1917, from Bisbee, Arizona, and its aftermath (c. 1918)
Mining Conditions in Bisbee, Arizona (August 29, 1917)
Arizona Chapter of the American Mining Congress, Deportations from Bisbee: and a resume of other troubles in Arizona (c. 1917)