Willis Van Devanter, Cheyenne Lawyer and U.S. Supreme Court Justice

Lori Van Pelt
Saturday, February 14, 2015

The brilliant lawyer Willis Van Devanter of Cheyenne made a name for himself in the 1890s as a loyal Republican and protector of the interests of the powerful. Late in 1910, President William Howard Taft named him to the U.S. Supreme Court, where he served as a staunch conservative for 26 years.

Willis Van Devanter about 1896, the year he argued the Race Horse case before the U.S. Supreme Court. Wyoming State Archives.

Van Devanter, who originally hailed from Indiana, became the first United States Supreme Court justice from Wyoming when President Taft selected him for the position in 1910. He remains the only justice ever to have been appointed to the high court from the state.

Van Devanter's famous Wyoming cases included defending the invaders after the Johnson County War and arguing before the U.S. Supreme Court the issue of hunting rights in the Race Horse case. During his 26-year tenure on the U.S. Supreme Court, he took special interest in cases involving public lands, water rights, Indian conflicts, admiralty and corporate law, but he wrote relatively few opinions.

Throughout his life, Van Devanter enjoyed both the law and politics. He capitalized on those loves when he moved from Indiana to Cheyenne, Wyoming Territory, in 1884 with his bride of less than a year, Delice Burham. Van Devanter was only 25, yet his experience included managing his grandfather’s farm at age 14, graduating second in his class of 65 students from the University of Cincinnati Law School, working at his father’s Lacey and Van Devanter law firm and being chosen as prosecuting attorney to fill a vacancy in the 28th Indiana Judicial District.

When President Chester A. Arthur appointed Van Devanter’s brother-in-law, John Lacey, as chief justice for Wyoming Territory, Van Devanter headed to Cheyenne. Soon after, he partnered briefly with attorneys Hugo Donzelmann and Charles W. Stewart, but that partnership soon dissolved, probably because of personal differences.

Warren’s man

In 1885, Van Devanter offered his legal expertise to another of President Arthur’s appointees—Francis E. Warren, who was serving as governor of Wyoming Territory. Over time, the two men developed a close friendship. In addition, Warren’s political clout helped Van Devanter throughout his career.

Also in 1885, Van Devanter purchased a one-third interest in one of the largest ranching concerns in the Territory, Swan Land and Cattle Company, on behalf of his father-in-law. This appeared to be a clever investment, but a harsh winter and a declining beef market caused great losses for the company. Van Devanter, who had relied on the sterling reputation of the company, had not arranged for security for his family’s interest and found it necessary to negotiate promissory notes.

The next winter, 1886-1887, became known as “the Great Die-Off,” because so many cattlemen lost such large portions of their herds. The Swan Land and Cattle Company declared bankruptcy in 1887. Van Devanter posted a $100,000 bond and had himself named as receiver. The receiver in a bankruptcy case is often appointed by the courts or the creditors, typically manages the assets of the company and makes decisions about how the funds are allocated. Van Devanter probably posted the bond to prove his trustworthiness, as such bonds are relied upon to protect the assets of the company from fraud, dishonesty or theft, and that protection was important especially since this position appeared to present a conflict of interest for him because he had invested funds for his own family. However, he could not recoup his family’s losses, and in 1888, he resigned that position.

Van Devanter succeeded in other endeavors. In 1886, at the behest of Warren, Van Devanter drafted a special appropriations bill for the territorial legislature, setting aside $150,000 for the building of a capitol and $50,000 to establish a university at Laramie. The bill passed easily, and historian M. Paul Holsinger writes that Van Devanter “never ceased to be proud of the small yet extremely significant role he played in the creation of both the capitol building and the university.”

Warren appointed Van Devanter to work with Isaac P. Caldwell and J.W. Blake to revise the territorial laws and statutes. Van Devanter patterned these after the laws of the state of Ohio, where he had received his legal education, and they were later used in the 1889 constitutional convention.

Van Devanter was also nominated for the Territorial House of Representatives in 1886, with a term scheduled to begin in January 1888, as the legislature then met only in alternate, even-numbered years. He was the only attorney running for the House. He campaigned extensively, traveling from Colorado to Montana. When the ballots were counted, he led the Republicans and received more votes than Joseph M. Carey, who won re-election as Wyoming’s territorial representative to Congress.

During the interim between his election and taking his seat in the House, Van Devanter served as Cheyenne city attorney, receiving a stipend of $750. Mayor John Riner, whose remuneration was just $500, appointed him. Van Devanter also formed a profitable law practice in partnership with Charles N. Potter, which began in 1887 and lasted for a couple of years.

Legislative politics

Van Devanter began his House term at the age of 28. Two years earlier, in 1886, Gov. Warren, a Republican, had been removed from the governorship by President Grover Cleveland, a Democrat, because of accusations that Warren illegally fenced public lands. Cleveland appointed Thomas Moonlight as governor.

Willis Van Devanter's house at 802 East 18th Street in Cheyenne, 1909. By this time he was traveling widely in the West and Midwest as a judge on the federal Eighth Circuit Court of Appeals. Joseph Stimson photo, Wyoming State Archives.

Moonlight was often at odds with legislators. At the end of the 1888 session, Van Devanter presented a bill appropriating $150,000 for an addition to the new capitol and with provisions to fund other public buildings. When Gov. Moonlight vetoed the bill, Van Devanter persuaded other lawmakers to override the governor. The bill became law.

The action came in a special nighttime session on March 9, the final day. At 10:20 p.m., a general appropriations bill was introduced that allowed for an increase in Territorial expenditures and that created three new counties: Converse, Sheridan and Natrona. After Gov. Moonlight vetoed this bill, the clock was stopped and discussion ensued. Van Devanter successfully argued for its passage, the lawmakers overrode the veto and the bill became law.

During the 1888 session, the assembly also changed the rules that required the 14-month time lapse between elections and service of legislators.

Territorial bench

President Benjamin Harrison, a Republican, appointed Van Devanter as chief justice of Wyoming Territory in 1889. On Sept. 1 of that year, The Cheyenne Daily Leader, the Democratic newspaper, carried a straightforward report about the appointment and a brief biographical sketch of Van Devanter, explaining, “He is a married man and has enjoyed a good practice before the bar.”

In an editorial two days later, The Cheyenne Daily Sun, the Republican newspaper, was more enthusiastic: “Painstaking, unimpassioned, but with a great persistence he champions a cause with all the forces at his command, and is it not too much to say that he is a natural lawyer.” At age 30, Van Devanter became one of the youngest justices in the federal system, and the first Wyoming resident to serve the territory in that position.

Van Devanter took his oath of office on Oct. 2, 1889. According to Holsinger, the new, young judge became known for lecturing from the bench. Van Devanter believed the West offered plentiful opportunities for anyone who could work and doled out severe punishment to thieves.

In September 1889, the constitutional convention for Wyoming statehood met in Cheyenne. Van Devanter was not a delegate, but he had a pass to the floor. The document was approved in early November 1889.

Back to private practice

Congress admitted Wyoming to statehood on July 10, 1890. Republicans won top spots in a landslide that year, with Warren selected as governor. Van Devanter, H.V.B. Groesbeck and Arthur Conaway won seats on the new Wyoming Supreme Court. The justices drew straws to choose the chief justice, who would serve the shortest term. Van Devanter was selected, but a few days later resigned his position to return to private practice.

Holsinger suggests that this was part of a calculated political plan because Van Devanter’s name may have helped Republicans in the election. He also may have planned to run for office himself, which he could not do as a justice. Many years later, Van Devanter destroyed many of his political papers, so his reasons for this decision are not known.

Van Devanter joined his brother-in-law, John W. Lacey, who had also served as chief justice. Their partnership became the state’s most prominent law firm; their clients included the Union Pacific Railroad. Two cases Van Devanter worked on at this time “stand out not only because of their extreme importance to Wyoming, but because both were in so many ways connected with Republican party politics,” Holsinger notes.

The Johnson County case

Van Devanter, Lacey and eight other attorneys represented the “invaders” involved in the Johnson County War of 1892, an event that caught national attention. Some of the most powerful cattlemen in Wyoming, along with hired men from Texas, took a special private train from Cheyenne to Casper in early April 1892 and then rode north on horseback—a small army of around 50 men.

They were said to have had a death list of 70 people and were on a mission to put a stop to cattle rustling, which had plagued the territory and the state for many years and which they believed was treated too leniently by the legal system of the time. After they murdered Nate Champion and Nick Ray at the KC Ranch at present-day Kaycee, Wyo., about 200 armed citizens of Johnson County laid siege to the invaders at the TA Ranch south of Buffalo. President Benjamin Harrison sent cavalry troops from nearby Fort McKinney to rescue the besieged invaders.

Van Devanter became the lead attorney. He was able to get a change of venue so the invaders were tried in Cheyenne rather than in Johnson County, where tensions ran high. The trial began Aug. 7, 1892, with District Judge Richard Scott presiding. However, difficulties ensued.

During the jury selection phase, the sheriff of Laramie County, where Cheyenne is located, who had kept the prisoners at a cost of about $100 per day, asked that Johnson County foot the bill instead. But that county could not pay the accumulated $18,000 cost. The judge set the trial date back to August 22 and allowed the Wyoming men to leave on their own recognizance and had them sign bonds for the Texans. Other pressing cases in other jurisdictions resulted in another postponement, and the judge set the trial date back to January 1893.

Eventually, 1,064 prospective jurors were examined and dismissed. The prosecutor agreed to dismiss the charges, but Van Devanter at first opposed this because that would mean the defendants could still be tried in Johnson County. When the prosecutor agreed to accept a specially picked jury, Van Devanter approved the dismissal of the charges, even against the absent Texans. The jury sat and passed the motions quickly. This meant, because of double jeopardy, that the defendants could not be tried again on the same charges.

Holsinger writes, “Many years later, [Van Devanter] justified the acquittal of the cattlemen on the ground that nearly all of them were either leading citizens in Wyoming or from fine families. Despite the fact that the ‘war’ was ‘pretty raw,’ the rustling needed to be stopped, he felt, and, in the long run, the threat of further invasions without punishment had that effect.”

According to historian T.A. Larson, the Wyoming Legislature in 1899 finally appropriated funds to reimburse Laramie County for the $18,000 it had spent to house the prisoners.

The Race Horse case

In July 1895, a group of Bannock Indian families, traveling from their Fort Hall Reservation in Idaho to visit Shoshone relatives on the Wind River Reservation in Wyoming, stopped to hunt elk in Jackson Hole. They had been doing this regularly since 1868, when both reservations were established by treaty between the tribes and the federal government. The treaties guaranteed the tribes the right to hunt on the reservations, and to hunt on unoccupied lands off the reservation.

In 1895, however, long-simmering tensions with a growing number of white settlers in western Wyoming came to a head in armed conflict. Shots were fired, one Bannock died, another was wounded and a child disappeared in the skirmish. The rest of the Indians fled. Newspapers quickly sensationalized the story. Word that all whites in Jackson Hole had been killed by Indians screamed from headlines as far away as New York.

Just a few weeks later, a recently enacted Wyoming law regulating hunting throughout the new state went into effect. Scholars agree that it was aimed largely at Indians exercising off-reservation hunting rights.

Soon, Federal Indian Bureau and Wyoming state officials agreed it would be a good idea if there were a federal court case testing whether state law could restrict Indians’ treaty-based hunting rights. A tribal leader, Race Horse, and other members of the Bannock tribe agreed to go along. Sheriff John Ward of Uinta County—Jackson Hole at the time was still in Uinta County—arrested them for violating state law, and almost immediately the U.S. attorney in Wyoming instituted a habeas corpus action in the U.S. District Court of Cheyenne, seeking their release.

Race Horse’s defenders in the federal government argued that the earlier treaty clearly gave Bannocks the right to hunt on unoccupied U.S. lands. Acting for the state of Wyoming, Van Devanter refuted this by arguing that Wyoming’s statehood “abrogated the treaty within the boundaries of Wyoming.” The judge, John Riner, ruled for the federal authorities and Race Horse.

Wyoming appealed the case, and Van Devanter, who had been admitted to practice before the U.S. Supreme Court, became the state’s lead attorney.

At the same time, Van Devanter was very much aware of how the case, with its national implications, could also benefit his local political friends. He indicated in a letter to Sen. Warren that his interest in the case was political because he hoped a positive outcome would help the administration of Gov. W.A. Richards and the efforts of Republicans throughout the state in that election year of 1896.

When Ward vs. Race Horse was argued before the U.S. Supreme Court on March 11-12, 1896, Van Devanter presented oral arguments for Wyoming with U.S. Attorney General Judson Harmon offering the opposing view.

Two months later, the 7-1 opinion favoring Wyoming was delivered by Associate Justice Edward D. White. Holsinger explains, “White’s decision followed closely Van Devanter’s earlier arguments, thus not only giving the state of Wyoming a big boost but giving Van Devanter in his first Supreme Court case an impressive victory.”

The outcome of the case was a serious blow to tribal rights and sovereignty. Though the Supreme Court partially reversed itself on similar questions in subsequent decades, these matters are still in dispute today.

The move to Washington

Sen. Warren became instrumental in helping Van Devanter receive an appointment from President William McKinley as assistant attorney general assigned to the Department of Interior in Washington, D.C. When Van Devanter’s appointment was ratified by the Senate on March 18, 1897, the position, Holsinger explains, “gave him, indirectly, legal authority over the public lands of the nation.”

There had been some criticism of Van Devanter because of his earlier representation of the Union Pacific Railroad and rumors of corruption in that regard. Stellar recommendations from Warren, Sen. Clarence Clark and Rep. Frank Mondell, Gov. W.A. Richards and other Republican officials seem to have trumped such talk.

From 1897 to 1900, Van Devanter served as Wyoming’s Republican committeeman—that is, Wyoming’s representative to the national Republican Party—and obtained a number of appointments for some of the state’s prominent residents, including Frank Mondell, who served as assistant commissioner of the General Land Office from 1897-1899; Estelle Reel, who was appointed as the first female superintendent of the nation’s Indian schools in 1898; and Gov. W.A. Richards, who became assistant commissioner of the General Land Office in 1899.

The U.S. Supreme Court in 1915, four years after Willis Van Devanter, second from right in the back row, was named to the court by President Taft. Collections of the Supreme Court of the United States.

In 1903, President Theodore Roosevelt nominated and the Senate confirmed Van Devanter as judge of the Eighth Circuit Court of Appeals. The circuit included Minnesota, Iowa, Missouri, Arkansas, Kansas, Nebraska, South Dakota, North Dakota, Wyoming, Colorado, Utah, Oklahoma and New Mexico. Because of this large area, the judges worked almost entirely in the court of appeals in sessions in the cities of St. Louis, St. Paul, Denver or Cheyenne. This experience would prove valuable to Van Devanter, although he was criticized for not writing enough opinions.

The U.S. Supreme Court

Historian Daniel Nelson credits the advocacy of Sen. Warren and his political adeptness in convincing President William Taft to nominate Van Devanter to the U.S. Supreme Court when Chief Justice Melville Fuller died on July 4, 1910. Van Devanter’s name had been brought before the president prior to that, and numerous endorsements from colleagues throughout the nation had been sent to Taft as well. When the president expressed concern about Van Devanter’s not having written many decisions, Van Devanter sent a telegram to Warren explaining that he was cautious and deliberate in making decisions. He asked that his name be withdrawn from consideration for the post.

Warren sent a copy of the telegram to Taft, who had been considering others for the job. According to Nelson, this telegram with its “unjustly accused tone from the underdog” apparently influenced the president heavily. Taft nominated Van Devanter for the position in mid-December. Associate Justice Edward White was promoted to Chief justice, and Joseph R. Lamar of Georgia was appointed an associate justice as was Van Devanter. Wyoming’s Sen. Clarence Clark, chairman of the Senate Judiciary Committee, saw to it that Van Devanter was confirmed before the end of the year and ahead of Lamar’s confirmation so that Van Devanter had a slight edge in seniority.

Van Devanter was hailed as “the foremost intellectual among the conservatives,” but historian David Burner explains, “He was quiet and rarely appeared in public” and “eschewed controversy.” He drafted the Jurisdictional Act of 1925, which gave the court the ability to decide which cases to consider and increased the court’s policymaking power.

In 1937, President Franklin D. Roosevelt, frustrated by the Supreme Court’s declaring unconstitutional significant pieces of his New Deal legislation, called the make-up of the court into question. Republican presidents had appointed seven of the nine justices, and six of them, including Van Devanter, were past 70 years old.

Under pressure from Roosevelt, Congress took up the Court Reorganization Bill. Had it passed, the bill would have allowed the president to add one new judge for every judge older than 70 up to a maximum of six. The so-called court-packing bill was soundly defeated, but Van Devanter resigned in May 1937. He had contemplated ending his service several years before because of illness, but decided to remain because of the conflicts resulting from the New Deal legislation. Democrat Hugo Black was named as his replacement.

In retirement, Van Devanter, who had served on the Court more than 25 years and retired after age 70, still received his full $20,000 annual salary. In retirement, he traced his family’s genealogy in the United States and Holland and enjoyed hunting and gardening, a hobby he had pursued during the summers when the Court was not in session.

He died of a heart attack at age 81 on Feb. 8, 1941 in Washington, D.C., while he was visiting his sister. Sons Isaac and Winslow survived him, as did three grandchildren. In addition to church services, a memorial was held in the U.S. Supreme Court building by the Bar of the Supreme Court and officers of the court. Van Devanter was buried in Rock Creek Cemetery in Washington, D.C., beside his wife, who had died seven years earlier.

Resources

For further reading and research

  • Roberts, Phil. “Wyoming Becomes a State: The Constitutional Convention and Statehood Debates of 1889 and 1890 — and Their Aftermath.” WyoHistory.org. Accessed Feb. 13, 2015, at /essays/wyoming-statehood.
  • Willis Van Devanter’s papers at the Library of Congress in Washington, D.C. contain his correspondence with a variety of important national figures, including President William Howard Taft, Supreme Court Justice Oliver Wendell Holmes and others and important Wyoming politicians, among them Sen. F.E. Warren, Sen. Clarence D. Clark, Gov. William A. Richards, Congressman Frank Mondell and Sen. and Gov. Joseph Carey. For a finding aid to the papers click here.
  • A smaller selection of Van Devanter papers and artifacts is also available at the American Heritage Center at the University of Wyoming in Laramie. For a finding aid to that collection click here. See below for details on the center.
  • The friendly staff at the Wyoming State Archives in Cheyenne tells us there are two file boxes of correspondence, artifacts, photos and publications, etc., pertaining to Van Devanter, filed under the misspelled “Van Der Vanter” [sic] Collection (Acc. #804: 1879-1966). Though the name of that collection is incorrectly posted, researchers will need to search “Van Devanter” in the digital collections in order to find the information they seek. There also is some additional correspondence contained in the “McClellan, George B.” Collection that contains business and personal correspondence (1896-1932) with McClellan’s business associates, including “. . . personal friend Judge Willis Van Devanter of the 8th U. S. Circuit Court of Appeals, Cheyenne, Wyoming.” For more information, call (307) 777-7826.

Illustrations

  • The portrait of Willis Van Devanter and the Joseph Stimson photo of his house are from the Wyoming State Archives. Used with permission and thanks.
  • The photo of the U.S. Supreme Court in 1915 shows, seated in the front row from left, justices William R. Day and Joseph McKenna, Chief Justice Edward Douglass White, and justices Oliver Wendell Holmes, Jr. and Horace Lurton. Standing from left are justices Joseph Lamar, Charles E. Hughes, Willis Van Devanter and Mahlon Pitney. The photo is by Harris & Ewing, Collection of the Supreme Court of the United States. Used with permission and thanks.