The Trials of Border Control

During the nineteenth century, federal control over the Canada–United States border operated as a work in progress. Canada and the United States sent teams of men to demarcate their border, but resisted the large expenditures necessary to police it. Segments of the border remained poorly marked, making it difficult for agents and residents alike to know when they crossed national lines. Goods and people crossed the border uninspected, and time constraints forced customs inspectors to deviate from their assigned duties.Footnote ⁴

Low morale and desertion sapped the already limited border control forces both countries could muster, and exposed the limitations of the federal enterprise. Rank and file soldiers, customs inspectors, and police officers experienced cold, lonely, and periodically dangerous working conditions. Desertion reduced the number of men stationed along the border and forced Canada and the United States to expend additional resources trying to bring deserters back under their control. Chasing down deserters tied up resources that could have otherwise been spent capturing smugglers, criminals, and militants, which made desertion problematic on multiple fronts.Footnote ⁵

To make matters worse, the distinction between police and smugglers was never as clear-cut as Ottawa and Washington imagined. Customs inspectors and police officers exploited their official positions for personal profit facilitating rather than curtailing smuggling operations. Army captains, provincial police officers, customs agents, and Native American scouts broke federal laws often choosing to escape across the border that they had been stationed to protect when confronted with their crimes. Convicted criminals in turn assisted federal agents to control the border when economic opportunities presented themselves. Star Child, a Blood Indian who had spent 3 years in prison for stealing horses and who was suspected in the murder of Constable Marmaduke Graburn, for example, served as a scout for the Northwest Mounted Police where he helped to break transnational horse stealing operations. Economic circumstance rather than nationalism fueled enlistments, leaving Ottawa and Washington with uncertain control over their own agents and even less over the general population.Footnote ⁶

Decades of interconnections between residents of both sides of the border exacerbated the problems already facing federal agents. To make the border meaningful, police and customs officers had to overcome transnational marriages, business arrangements, criminal activities, and resource exploitation agreements that had grown organically for decades. Enforcing the border required more than just an abstract change in the ways people moved across national lines; it required reordering daily lives. This kind of intervention created resistance that underequipped agencies had few answers for.

Jurisdictional limitations added the final piece to the litany of problems facing border enforcement. Temporary and regional extradition agreements existed in the early nineteenth century, but provided little relief for the judicial complications created by the Canada–United States border. In 1842, Britain and the United States signed the Treaty of Webster-Ashburton, creating a permanent extradition policy that allowed both countries to extradite criminals suspected of murder, assault with the intent to kill, piracy, arson, robbery, forgery, and the utterance of forged paper. By 1890, Britain and the United States had revised their extradition agreement adding voluntary manslaughter, counterfeiting, embezzlement, larceny, specific kinds of fraud, perjury, rape, kidnapping, burglary, revolt on the high seas, and slave trading to the list of extraditable crimes.Footnote ⁷

The limited number of extraditable crimes prior to 1890 and the diplomatic and administrative complications created by extradition hearings limited the utility of these policies to agencies already overworked and understaffed. Extradition cases could drag on for months and cost between $25 and $100, depending on the complexity of the cases. Furthermore, extradition cases restricted the kinds of crimes that police officers could pursue. Suspected criminals could only be extradited if they committed one of the handful of crimes covered by extradition law, which social and political prohibitions further curtailed. Britain, for example, refused to return escaped slaves into bondage regardless of the crimes they were accused of committing, and both countries struggled for years to come to a cohesive statement about whether or not politically motivated crimes fell under extradition law. These restrictions, although not explicitly laid out in the early extradition treaties, added additional constraints to the extradition process and further reduced the number of cases that extradition law could resolve.Footnote ⁸

Even when extradition law could be utilized, it created additional hurdles for the requesting officers beyond those they experienced in cases of a national scope. Punishing a criminal through the extradition process required that the accusing officers demonstrate the validity of their case twice, first at an extradition hearing and later at a criminal trial. If suspected criminals won either of these cases, they secured their freedom, which added additional difficulty to the prosecuting officers. To make matters worse, extradition hearings took place within the country the criminal had taken refuge in, which allowed that person to draw, for defense, upon local and regional support.

In 1875, for example, the Northwest Mounted Police attempted to extradite Thomas Hardwick and his co-accomplices from Montana for the Cypress Hills Massacre of 1873, in which American wolfers killed twenty-four Assiniboine Indians on British soil. The Northwest Mounted Police ran into significant opposition during their extradition attempt. Local and state newspapers in Montana published defenses of the men's actions.Footnote ⁹ The Helena Weekly Herald argued, for example, that “while we would certainly be opposed to killing Indians in mere wantonness…we know their habits and nature so well that a shot aimed at any wild Indian could hardly miss a horse-thief.”Footnote ¹⁰ The newspaper noted that Indians placed “very different value upon human life” and that “hate [amongst Indians] is regarded as almost a religious duty.”Footnote ¹¹

In order to bring wanted men to justice, the Northwest Mounted Police had to enter a hostile social environment to present their case. Six Montana lawyers defended Hardwick and the other accused, providing a significant legal defense for the men. The difficulties extended past the courtroom. Lieutenant Governor Alexander Morris described the extradition case as a difficult and dangerous mission that, if successful, would require a sufficient number of police officers to prevent citizens of Montana from freeing the prisoners by force as the Northwest Mounted Police escorted them back to Canadian territory.Footnote ¹² The Northwest Mounted Police's ability to convey the men was never tested. United States Commissioner William E. Cullen ruled against the extradition request. The Canadian government, despite expending thousands of dollars, had nothing to show for their effort and could not take solace in the fact that Canadian courts had ruled on the men's innocence. Instead, the suspected criminals remained wanted in Canada, but out of its reach.Footnote ¹³

Difficult or unusual cases created additional hurdles within the extradition process that amplified the costs of the process, the legal ambiguities officers faced, and the chance of an unsuccessful outcome. On March 5, 1898, for example, Jack B. Atkinson shot William Pattison after the two had quarreled over the placement of buildings along the British Columbia–Washington border. The case created an anomalous situation, because Atkinson fired his gun while standing in British Columbia and hit Pattison while he stood in Washington State. Utilizing extradition law to bring Atkinson to the United States to stand trial required demonstrating that he had committed the offense in Washington rather than in British Columbia, a qualification that neither the justice of the peace for Whatcom County, Washington nor the attorney general of the Province of British Columbia felt comfortable ruling on. To both governments' pleasure, Atkinson voluntarily returned to Washington removing the necessity of a long and protracted legal dispute. The correspondence between the police in Victoria and the attorney general's office provides no indication as to why Atkinson volunteered to return. He may have done so out of feelings of guilt, to expedite the case, or under duress. Whatever the reason, his movement across the border without the need for a formal extradition case saved officers of both countries months of legal work gathering witnesses from both sides of the border and sorting out how to approach such an anomalous legal situation. As the Cypress Hills Massacre case suggests, this work came with no promises of success. Extradition agreements, while useful, provided only a partial respite to the mobility that criminals exercised along the border.Footnote ¹⁴

The fusion of discontent, limited funding, inadequate extradition law, and challenging border geography limited the kinds of policies that Canadian and American officials could implement during the nineteenth century. In response, police officers and soldiers on both sides of the line began to look for alternative ways to complete their duties that replicated the flexibility with which borderland citizens moved, while maintaining a semblance of legal authority in the process. These desires led them to create informal, cooperative, and extralegal policies that allowed state personnel to exert power beyond the confines of the nation state without having to rely on the cumbersome extradition process. These informal ventures occurred most frequently in communities that abutted the border, where the difficulties caused by transnational life occurred most frequently and the ephemeral nature of the border remained most apparent.

Governments or businesses willing to hire private detectives or offer bounties for the capture of wanted persons could expand the scope of their extralegal searches into the interiors of each country. Making captures far from the border, although possible, decreased the likelihood of a local understanding regarding transnational crime, and increased the time that officers had to control their suspects in an area where they lacked jurisdiction. This increased the costs of the process and left the abductors more vulnerable to the interventions of domestic law enforcement officers whose jurisdiction they had invaded.Footnote ¹⁵

Transnational abductions and prisoner exchanges were not aberrations. They were integral parts of border control. As the Emporia Weekly News noted in 1885, American police officers brought more fugitives back from “Canada by abduction than by means of the extradition law” noting that “the expenses attending an abduction are about one-half of what an extradition costs.”Footnote ¹⁶ Changing extradition laws required lengthy debates within the British Parliament and the United States Senate that often led nowhere. Irregular seizures did not end the challenges police officers and soldiers faced along the border, but they did ease their burdens considerably.Footnote ¹⁷

The Rise of Irregular Justice

Law enforcement personnel, faced with frequent irritations and challenges caused by the border, utilized irregular forms of justice to supplement the ways that they moved and operated. Irregular justice consisted of actions committed by official representatives of municipal, state, or federal governments performed with the intention of achieving a “just” end through a means that violated at least one country's laws in order to do so. This kind of action blurred the lines between vigilantism and official procedure. In a transnational context, irregular justice occurred when officers of the state abducted wanted persons from across international lines or created informal prisoner exchanges to circumvent extradition law. These officers justified their actions on logistic and moral grounds. They hoped to avoid the months it took to navigate the extradition process, chaffed at their inability to punish criminals for crimes that lacked extradition provisions, and believed that a failure to punish criminals—especially those that fled national boundaries—would encourage future crimes of a similar nature.Footnote ¹⁸

British and American courts, confronted with officers of the state committing crimes in the name of justice, began to solidify how each respective state handled these kinds of semiofficial breaches of sovereignty. The courts' rulings in the international abductions of Oliver B. Brewster (1835), James W. Grogan (1841), and William G. Rowe (1858) clarified that both countries would interpret breaches of sovereignty as diplomatic rather than legal issues. Britain and the United States would release abducted criminals in order to appease each other's violated sense of sovereignty, but would only do so as a result of letters sent through diplomatic channels. Baring such an intervention, British and American courts prosecuted criminals in their jurisdiction with little regard for how they got there.

On August 13, 1834, for example, unknown assailants broke into a shop in Alburg, Vermont and stole cloth and leather from the premises. Fresh horse tracks led investigators across the border to the vicinity of Caldwell's Manor where Oliver B. Brewster resided. After suspicions against Brewster increased, citizens of Vermont forcibly seized Brewster and took him across the border to stand trial for burglary and theft. Brewster's abduction occurred without the consent of administrators in Lower Canada creating a clear violation of Britain's sovereignty. During the ensuing court case, the Supreme Court of Vermont ruled that it was not up to the court “to inquire by what means, or in what precise manner, he [Brewster] may have been brought within the reach of justice.”Footnote ¹⁹ It argued that the illegality of the seizure and violation of Britain's sovereignty did not supersede the court's responsibility to prosecute criminals under its control.Footnote ²⁰

Less than a decade later, British soldiers crossed into Vermont, where they captured James W. Grogan in the town of Alburg and brought him back to British North America to stand trial for arson. The abduction was years in the making. Grogan, an American, had previously lived in Lower Canada, but had been forced to move to the United States when his sympathies came into question during the Rebellion of 1837. Incensed by his expulsion, Grogan torched buildings in Canada using the border to evade arrest. Grogan remained free until 1841 when British soldiers recognized him while they attended a tavern on the American side of the border. The soldiers seized Grogan, beat him, and brought him back into Britain's jurisdiction to stand trial for his crimes. The American Department of State complained about the violation of American sovereignty leading to Britain's eventual release of Grogan.Footnote ²¹

British and American courts continued to interpret irregular justice as a diplomatic rather than legal hurdle. In February 1858, George W. Clinton of the Superior Court of Buffalo, New York ruled in The People v. William G. Rowe that the courts had the right to try criminals captured as a result of international abductions. The case centered around William Rowe, who had escaped charges of grand larceny by fleeing to Canada. In order to force Rowe to stand trial for his crimes, the deputy sheriff of Erie County made “an arrangement with some person or police officer in Canada to bring the prisoner to this side.”Footnote ²² The Canadian co-conspirator dragged Rowe across the border, where the American deputy sheriff took custody and pressed charges. The Superior Court recognized that Rowe's rights to liberty had been violated in Canada, and believed that the Canadian courts had every right to punish those involved in the kidnapping. It did not believe, however, that it had a legal duty to free the prisoner. Instead, it argued that the abduction was a matter of international affairs beyond the scope of the courts, and that the court would be committing a “gross injury to the People if it should discharge” a suspected criminal untried.Footnote ²³ The decision created a situation under which American police officers and their supporters risked arrest for kidnapping while on British soil, but ensured they could enjoy the fruits of their endeavor once they had crossed back into the United States.Footnote ²⁴

Together the cases of Oliver B. Brewster, James W. Grogan, and William G. Rowe set the legal basis for the growth of informal prisoner surrenders and illegal abductions across the British–American border. Protests from the country whose sovereignty had been violated would be considered, but the United States and Britain reserved the right to prosecute suspected criminals within their jurisdiction regardless of the circumstances of their arrest. This understanding took on a new importance during the 1860s, when the Dakota War and American Civil War encouraged thousands of soldiers, deserters, and refugees to cross national lines, increasing the appeal of irregular forms of justice during an already tense diplomatic moment.Footnote ²⁵

In 1862, the Dakota (Santee Sioux) launched a large-scale attack on settlers in Minnesota over long-standing grievances, broken treaty promises, and local unrest. In the aftermath of the war, which killed hundreds, Medicine Bottle (Wakanozhan and Grey Iron), Little Six (The Six, Shak'pay, and Shakopee), and close to 600 Dakota fled to the Red River Settlement in British North America. The exodus exploited the uneven impacts that the border had on movements. Canadian forces lacked the power to stop the Dakota's relocation; however, British claims to sovereignty prevented American troops from pursuing the Dakota across the line. The United States, incensed by the Dakota's movements, sent Major Edwin Hatch and 400 American cavalry to the border in the hopes of pressuring the Dakota into returning to the United States.Footnote ²⁶

Unable to rely on force, Hatch began to consider various ways to bring the Dakota under his influence. He attempted to convince the British government to eliminate the rations they provided to the Dakota or to allow him to bring his troops across the border under the watch of a British commander. When those plans failed, he staged a small incursion across the line, hoping to achieve justice through irregular means without risking the kind of international incident that sending hundreds of cavalry would have. Hatch recruited John H. Mackenzie and Onisime Giguere to abduct Little Six and Medicine Bottle, two chiefs believed to have led the violence, from Canada. He promised Mackenzie and Giguere a substantial reward if they succeeded.Footnote ²⁷

On January 15, 1864, Mackenzie and Giguere travelled across the border to the Dakota camp on the Assiniboine River. The two men announced that the Canadian authorities were planning to cease the supply of rations that they provided to the Dakota. Little Six and Medicine Bottle, upset by the prospect, agreed to travel to Fort Garry with Mackenzie and Giguere to protest their case. On the trip, the party drank heavily, giving Mackenzie and Giguere an opportunity to restrain the two men. They laced the two chiefs' liquor with laudanum and used chloroform to keep them incapacitated. They carried Little Six and Medicine Bottle across the border by sled, delivering them to Hatch.Footnote ²⁸

The irregular capture created judicial concerns, but failed to incite much of a diplomatic stir, perhaps because of the racial status of the defendants and their suspected involvement in the massacre of white settlers. The American government declared it had not authorized Hatch's action. It insisted, however, on taking full advantage of the circumstances. An American military commission charged Little Six and Medicine Bottle with the murder of Philander Prescott and a list of unnamed and unnumbered white men, women, and children during the Dakota's War with the United States. Little Six and Medicine Bottle denied their participation in the violence, and Medicine Bottle, in a statement prepared by two attorneys on his behalf, argued that the case brought against him had no legal standing because he had been forcibly removed from British territory against his will.Footnote ²⁹

General Henry Hastings Sibley defended the military's stance by arguing that British citizens rather than American soldiers had abducted the two militants from British soil. In doing so, he emphasized that the proximity of the abductors to the American chain of command should be taken into consideration when determining the magnitude of the affront to British sovereignty. Moreover, he argued that there was “no evidence that the British authorities have ever made or intend ever to make a claim for [the] prisoner's restoration on the ground of a violation of their neutral territory.”Footnote ³⁰ Sibley's depiction of events ignored the close ties between the American military and Mackenzie, and dismissed the kidnapping as a minor diplomatic matter. Sibley noted further that allowing these two men to escape punishment would have a bad effect on Indians in general, making an explicit link between present punishments and future crimes. The United States military commission, unmoved by Little Six's and Medicine Bottle's pleas, found the two men guilty of murder and had them executed by hanging on November 11, 1865.Footnote ³¹

Although the irregular seizures conducted by McKenzie and Giguire violated British sovereignty, the two men received rewards rather than punishments on their return to the United States. The state of Minnesota provided them with a total of $1,000 in 1868 for their services in the abduction. McKenzie, however, was not satisfied. During the Dakota War, he had worked as a gravedigger, messenger, guide, scout, and abductor for the American military forces. Despite these contributions, Major Hatch denied that McKenzie was a formally enlisted man, depriving him of his rights to a pension and the recognition he desired. In McKenzie's estimation, Hatch had done this because McKenzie “did not pile all the honors onto the officers under which I operated.”Footnote ³² Hatch may have also denied McKenzie's official enlistment as a way of distancing the American army from the misgivings caused by the kidnapping. Sending soldiers under orders to abduct individuals in British North America was far more unsettling than the actions of civilians done for personal profit.Footnote ³³

Whereas the abduction of Little Six and Medicine Bottle occurred at the edges of federal power and targeted a racially marginalized population, high rates of desertion and smuggling during the Civil War ensured that irregular seizures could not be as easily written off. Over the course of the war, approximately 500,000 soldiers, that is, one in four, deserted. At least 10,000 Union deserters fled to the United Canadas, with additional British soldiers fleeing their posts to enlist in the Union and Confederate armies where they could secure better pay. British and American officers sent detectives across the border to monitor the movements of deserters, smugglers, and suspected spies. They also sent small parties across the line to force suspects to re-cross the border so that they could stand trial for their crimes. Unlike with the Dakota abductions, the irregular capture of deserters occurred in major population centers, affected British and American citizens, and transpired with regular frequency. They could not be dismissed as an unfortunate misunderstanding underwritten by a shared desire to put down Indian resistance or by the distance between federal agents and the cores of federal power.Footnote ³⁴

In 1863, for example, Union soldiers led by John A. Haddock, Captain of Company E of the 35th New York volunteers, crossed the border in pursuit of Ebenezer Tyler, a deserter from the Union army. Haddock and his men captured Tyler at Wolfe's Island in Canada West and dragged him back into the United States. William H. Seward, American Secretary of State, defended the zeal of the commanding officer but not the wrongdoings of the action. Pressure from the British government forced Tyler's release and the dismissal of the commanding officer.Footnote ³⁵

British officials violated the sanctity of the border in the other direction. British soldiers abducted deserters who had succeeded in relocating to the United States, and British constables developed arrangements with American police officers to conduct unofficial extraditions of common criminals. In 1863, for example, John McElreivy and James Wilson robbed a store in the township of Moore, Canada West and escaped to Port Huron, Michigan where they were arrested for bringing stolen goods into the country. According to the jailers at Port Huron, the prisoners then escaped to Canada where they were arrested and sentenced to 2 and 3 years, respectively, for larceny. An American commercial agent working at Sarnia, who witnessed the handling of the prisoners, believed that the jailers had lied about the escape and had instead colluded with Canadian constable William George Harkness to illegally transfer the prisoners back into Canadian custody. Once news of the prisoner's illegal transfer spread, Lord Charles Stanley Monck offered to return James Wilson and John McElreivy to the American authorities at the British government's expense. Seward, however, did not press for the men's return. He similarly declared a year later that the United States would not insist that Britain return Ira Lee and George Coop, who had been abducted by a Canadian Constable in New York, but requested that Britain do its best to thwart the growth of irregular enforcement along the border.Footnote ³⁶

American and British officials apologized to one another when their men violated the border, but rarely punished the offending agents and often did little to secure the return of prisoners taken through irregular means. Faced with the difficulties of controlling crime, rebellion, and desertion along a permeable border, Canada and the United States accepted that their own men might move across the border to a limited extent in the pursuit of their duties. Major diplomatic gaffes, such as British soldiers attacking Upper Canadian rebels that had taken sanctuary on American soil or Union forces abducting two Confederate envoys from the British ship Trent during the American Civil War, required immediate action. Day-to-day violations of the border, however, were much easier to ignore. As long as apologies over minor breaches of neutrality soothed tempers, neither country invested much time or energy reining in their troops beyond what was immediately practicable. This strategy entrenched the rulings that British and American courts had made during the early nineteenth century. They would punish First Nations and white Americans and Canadians seized through illegal means regardless of the circumstance of their arrest. These decisions left only a small window of escape offered through diplomatic intervention.Footnote ³⁷

New Nations and New Possibilities

Although the end of the Civil War reduced the importance of desertion as a central motivation for employing extralegal abductions and exchanges, the practice continued as new areas of concern arose. In 1871, for example, President Ulysses S. Grant signed the Ku Klux Klan Act into law as racial violence in the American South became endemic during Reconstruction. The Klan Act caused many affluent Klansmen to flee the United States, many looking north to escape prosecution. The United States posted bounties for these men's arrests, linking Canadian profiteering to Reconstruction politics. Isaac Bell Cornwall, who worked for the crown attorney at the County of Essex, hoped to take advantage of one such reward. Cornwall located a man he believed to be Major James W. Avery, wanted for murder in South Carolina, and took it upon himself to capture him.Footnote ³⁸ He chloroformed the suspected Klansman and carried him by train to Detroit where Joseph G. Hester, an American detective, took custody of the prisoner.Footnote ³⁹

The abduction drew the concern of the American attorney general, Canadian Governor General's Office, and the British Secretary of State for the Colonies because of the illegal nature of the seizure and because Cornwall had accidentally abducted Rufus Bratton, a wanted man in his own right, instead of James Avery. The confusion occurred in part because Rufus and Avery came from the same community, and had played leading roles in the murder of black militia captain James Williams. The abduction of the wrong man, by no means an isolated incident, highlighted the risks of supporting irregular forms of justice. Eliminating the administrative hurdles surrounding extradition made the transfer of suspected criminals across national lines easier. At the same time, it removed the checks and balances that both countries had put in place to ensure the fair treatment of captured persons, and reduced the consistency in the ways transnational cases were handled.Footnote ⁴⁰

Bratton, unwilling to test his fate at the hands of the South Carolina's courts, posted bail and fled the United States. The decision required that he forfeit a $12,000 bond. Risking his freedom on Britain's willingness and ability to pressure the United States over the irregularity of his seizure, however, was a dangerous proposition. As the cases of Medicine Bottle, Little Six, Oliver B. Brewster, and William G. Rowe had demonstrated, the United States had no qualms about prosecuting individuals taken in similar circumstances. Bratton succeeded in making his way back to Canada, where he convinced the British government to intervene on his behalf. South Carolina released Bratton's bond as diplomatic pressure from Britain mounted. Bratton remained north of the border with his family until the United States offered amnesty to Klansmen.Footnote ⁴¹

Isaac Bell Cornwall suffered for his role in the abduction, setting him apart from many of the other assailants who assisted in irregular captures. The Canadian government sentenced Cornwall to 3 years at a Dominion penitentiary, a far cry from the $1,000 reward received by McKenzie and Giguire in the Dakota abductions. For both criminals and police officers alike, irregular captures created unpredictable results. Diplomatic interests fueled the decision-making process as much as the specifics of each case, leading to a wide range of possible results, even among cases with a fair amount of similarity.Footnote ⁴²

At the same time that high profile abduction cases, such as Bratton's, highlighted the uncertain results that stemmed from irregular seizures, federal attempts to curtail Native American mobility on the prairies after the Civil War demonstrated both countries' willingness to experiment with alternative means of administering law in transnational regions. During the 1870s and 1880s, the Lakota, Cree, Métis, and Nez Perce resisted assimilation policies, land cessions, and colonial oversight through military engagements. When their resistance failed, all four groups attempted to shield themselves from retribution by moving beyond the national jurisdiction of the military they had lost to.Footnote ⁴³

Canadian and American officials, faced with chronic conflict with Indigenous nations, looked to establish a border enforcement policy that replicated the flexibility of irregular judicial practices, while eliminating the uncertainty that often accompanied this style of control. Lieutenant General William T. Sherman and Brevet Major General Alfred Terry advocated in 1867, for example, that Canada and the United States sign a diplomatic agreement allowing American troops to pursue Indians across the Canadian border. This allowance would diminish the ways that the border shielded Native American horse thieves and militants, an approach the United States adopted along its border with Mexico.Footnote ⁴⁴ Terry believed that this kind of policy could be structured in such a way that cross-border captures would only occur far from white settlement in the “pathless wilderness” occupied by Indians.Footnote ⁴⁵

The Canadian Prime Minister, John A. Macdonald, attempted to establish a less invasive system “by which Indians on either side [of the border] should, on complaint under oath … be arrested and surrendered for trial in the country where the offenses may have been committed” regardless of whether or not the offenses were covered by the “terms of the existing Extradition Treaties.”Footnote ⁴⁶ Macdonald's, Sherman's, and Terry's suggestions tried to legalize core components of irregular judicial practice, including the operation of federal agents across borders and the loose requirements for prisoner transfers. They hoped the racial status of Indians would soften the offensiveness that these policies might have toward British and American claims to sovereignty.

The policy suggestions that Macdonald, Terry, and Sherman made did not gain the traction that they had hoped for. International agreements between the United States and Canada had to pass through Britain, which added additional bureaucratic complications. At the same time, the Cypress Hills Massacre in 1873 made it difficult to separate border violence between First Nations and settlers from tightly held conceptions of national pride and sovereignty. Finally, until the Major Crimes Act in the United States in 1885, which gave the American government the ability to prosecute crimes occurring within Native American communities, the United States's jurisdiction over Indigenous crime was already a bit uncertain. Bringing transnational elements into play only exacerbated an already complicated legal situation.Footnote ⁴⁷

Canada and the United States, hesitant to rely on irregular abductions and unable to establish agreements to allow police and army officers to operate across the border, developed alternative ways to restrict the transnational mobility of Native American militants and criminals. In 1869, the Parliament of Canada passed an act allowing Canadian police officers to punish criminals who brought stolen goods into the country “as if the stealing, embezzling, converting or unlawfully obtaining such property had taken place in Canada.”Footnote ⁴⁸ This act, which applied to both Natives and non-Natives alike, deprived First Nations and Métis horse thieves of the protection that the border once had offered them. In 1885, Canada established a pass system under which Indians who left their reservation without permission could be detained. Although this policy violated treaty rights and lacked a legal basis, Canadian Indian agents still used it to monitor and interfere with movements. Finally, Canada and the United States exploited growing rates of dependency among Native American communities to cut away at their independence by coercively using rations, land recognition, and Indian status to make life as miserable as possible for those who exploited the border in undesirable ways.Footnote ⁴⁹

Together, these policies allowed both countries to punish Native American horse thieves and combatants without having to rely on transnational abductions. Instead, both countries gained custody of wanted persons including Sitting Bull, Lucky Man, and Little Bear, through a combination of deprivation, patience, and diplomatic pressure. Sitting Bull, impoverished, eventually returned to the United States of his own accord after fleeing to Canada during the Great Sioux War. Canada gained custody of Little Bear, Lucky Man, and hundreds of other Cree suspected of taking part in the Rebellion of 1885, after the United States agreed to deport them in 1896.Footnote ⁵⁰

Deportations served as a clever alternative to both the cumbersome extradition process, which often failed to return political prisoners, and to irregular abductions, which risked international incident. The success of this indirect style of control sometimes took years to see fruition, but demonstrated that Canada and the United States no longer needed to engage in risky abductions, as they had following the Dakota War, to gain custody of Native American leaders. In many cases, privation and patience were enough.Footnote ⁵¹

Although Canada and the United States developed a wide array of alternative means to curtail the transnational mobility of Native American militants and criminals, they continued to rely on abductions and informal prisoner exchanges to control criminals of European descent who fled across borders. Racial ideologies prevented Indian policy from being applied across a broader population, and extradition law continued to lag behind the needs of the police. By the 1880s, for example, American embezzlers had begun to cross the border in large numbers, encouraged by their ability to spend American greenbacks abroad and by the speed at which new transportation networks allowed them to reach the border.Footnote ⁵²

The embezzlement case of John Chester Eno, the President of the Second National Bank of New York, in 1885, for example, exposed the inability of Canadian and American police officers to punish transnational embezzlement through legal channels. Between 1881 and 1884, Eno lost approximately $4,000,000 belonging to the Second National Bank in his speculative ventures. He fled to Quebec when it became clear he could no longer hide his losses. Neither extradition law nor Canadian statutes against transnational theft proved effective at bringing him to justice.Footnote ⁵³

Eno could not be extradited for embezzlement, as the crime was not an extraditable charge until 1890, and Canadian courts refused to extradite him on alternative charges such as forgery. The Canadian statute, which allowed the Dominion to charge transnational thieves as if they had committed their crime on Canadian soil, proved little more effective. The statute required that the government demonstrate that specifically identifiable property had been taken across the border, which was far easier to do with branded horses or cattle than with pieces of currency that had few distinguishing characteristics. Eno remained free, encouraging hundreds of other embezzlers, known as boodlers, to cross the border. Many chose to operate under their own names once across the line, showing little fear of reprisal. The lag between rising rates of crime and the legal provisions necessary to punish it created fertile grounds for irregular renditions of justice.Footnote ⁵⁴

In practice, the border represented only a partial shield from prosecution, as police officers and private detective agencies utilized a wide variety of tactics to gain custody of boodlers who fled national lines. Pinkerton detectives, motivated by financial incentives and allowed to operate within the significant legal gray areas both governments had created, worked to bring transnational criminals to justice. Pinkerton detectives hired informants to track the movements of suspects on both sides of the border, hired beautiful women to seduce suspected criminals into crossing the border, bullied known embezzlers into returning their stolen goods, and lured wanted men across the border with promises of phony jobs, feelings of safety, and trickery. Once the suspected criminal crossed the border, Pinkerton detectives and local law enforcement personnel arrested them. When trickery failed, Pinkerton detectives kidnapped individuals outright, mimicking the same strategies that state actors had adopted.Footnote ⁵⁵

In 1885, for example, a private detective from Boston befriended suspected embezzler Lawrence Brainerd, lured him out on a duck hunt, overpowered him, and took him across the border to stand trial. The abduction outraged Canadian officers in Winnipeg, Manitoba, from whose jurisdiction Brainerd had been taken, because they had not been consulted in the matter. Brainerd escaped American custody and crossed back into Canada, resolving the diplomatic dispute before much had come of it. Brainerd's irregular seizure highlighted the uneasy barrier that the national border offered to criminals. Although American detectives had kidnapped Brainerd from Canadian territory, he still chose to return to the Dominion after his escape believing, like Rufus Bratton before him, that the border offered at least a partial respite from prosecution.Footnote ⁵⁶

Hiring private detective agencies, although expensive, appealed to national governments, banks, and private individuals, because they could be used to augment the work of official representatives of the state without creating significant diplomatic stirs. As David B. Hill, the Governor of New York, argued “private frauds between individuals are not the subject of international intervention.”Footnote ⁵⁷ Although one country could certainly complain when official representatives of another country breached its laws, it had far less diplomatic leverage to utilize when private detectives conducted the same actions.

In 1886, the United States Supreme Court solidified the place of irregular justice as a tool for American international policy, underwriting much of the work that private detectives and local police forces had been doing for decades. The Supreme Court decision in Ker v. Illinois noted that the “possession of the offender gives jurisdiction and forcible arrest or abduction does not impair that jurisdiction.”Footnote ⁵⁸ Although Ker v. Illinois ruled on the rights of a suspected embezzler taken from Peru by Pinkerton detectives, it had important implications for the United States's broader interpretation of its extradition agreements with Britain. The United States Supreme Court ruled that the presence of an extradition agreement did not force the countries to abide by it. The seizure by “United States officials of fugitive criminals on the territory of a state with whom the United States has an extradition treaty is not ipso facto a breach of that treaty.”Footnote ⁵⁹

In the same year, the United States Supreme Court ruled during United States v. Rauscher that prisoners extradited between Great Britain and the United States could only be charged with the crimes for which they had been extradited. This condition, which Britain had been advocating on behalf of for decades, reduced the flexibility of the extradition process and made the kinds of abductions justified in Ker v. Illinois all the more appealing. In the aftermath of Ker and Rauscher, American criminals residing in Canada began to conceal their identities more often. and moved farther away from the border fearing that a rash of transnational abductions could begin at any time. Illegal kidnappings made the border an uncertain sanctuary, ensuring that wanted criminals rarely felt at peace.Footnote ⁶⁰

By the turn of the century, Canada and the United States had expanded the appropriations that they gave to their police forces, Indian Affairs administrations, and customs departments. This increased funding allowed federal and provincial agencies to increase the number of men they stationed near the border, centralize their administrations, professionalize their forces, and increase the ways that they could control the movement of people and goods across the borderlands. At the same time, both governments signed new extradition agreements that expanded the number of extraditable crimes that each country recognized. This legal and administrative transformation reduced the necessity for irregular seizures by improving legal avenues for apprehension.Footnote ⁶¹

Despite these changes, irregular abductions and prisoner exchanges persisted. As the cases of Theodore Faust, Melvin C. Marston, and James Wilson suggest, federal and provincial agents continued to utilize irregular forms of justice, both tacitly and openly, in the course of their duties. This practice, although supported by American legal decisions, such as Kerr, continued to worry diplomats in both countries who viewed it as an unnecessary affront to proper judicial procedure.

In September 1898, Sheriff Elizah M. Denny of Stevens County, Washington arrested Theodore Faust for highway robbery. His decision to do so in British Columbia without permission from the Canadian government created an international incident when the Grand Forks Police Department intervened in the abduction and relieved the American sheriff of his prisoner. Not knowing any precedence for dealing with this kind of abduction, the police magistrate, who gained custody of Faust, passed the matter on to the attorney general. The Canadian government refrained from pressing charges against the sheriff, and he later applied for the extradition of Faust.Footnote ⁶²

Although the police at Grand Forks, British Columbia helped to prevent Faust's abduction, they also participated in acts of irregular justice. On April 7, 1899, for example, Henry Waisman arrested Martin S. Everett in Republic, Washington for robbery. Although American officers had arrested Everett on American soil, he quickly found himself defending his actions in front Canadian courts. Sheriff Isaac A. Dinsmore of Grand Forks, British Columbia charged Everett with shooting at Canadian officers near Midway and robbing William Bressard, a blacksmith working at the railway camp near Niagara. The illegal rendition of Everett across national lines garnered the attention of Levi Edwin Dudley, the American consul at Vancouver, who worried about the long-term implications of such practices.Footnote ⁶³

Dudley's investigation uncovered inconsistent accounts about how Everett, while under the control of American police officers, crossed national lines. According to the arresting officer, the prisoner had fallen into Canadian hands through accidental circumstance. Henry Waisman noted that he had taken custody of Everett in Stevens County, Washington and had attempted to take him to a nearby jail. The nature of this journey, however, required that he pass through Canadian territory with his prisoner, which opened himself up to external interference. Waisman, now outside of his jurisdictional boundaries, could not prevent Canadian authorities from detaining Everett and charging him with an unrelated set of crimes. Geography created unfortunate circumstances that Waisman had no control over.Footnote ⁶⁴

Dudley believed that Waisman's loss of his prisoner had not been an accident, and instead had occurred as a result of collusion between Canadian and American officers to circumvent the extradition process. According to a relative of Everett's, Waisman had ignored a writ of habeas corpus after he had arrested Everett in order to get Everett across the line as quickly as possible. In this context, Everett's transfer to Canadian authorities was not an artifact of awkward timing or a difficult-to-navigate set of criminal jurisdictions. Instead it was an intentional kidnapping that had occurred 18 miles south of the Canadian border and implicated police officers on both sides of the line.Footnote ⁶⁵

Dudley believed that once the irregular nature of Everett's arrest came to light, Canadian authorities would set Everett free. He hoped that the Canadian government would compensate Everett for his “illegal arrest, unlawful transportation from his own country to another, and his long incarceration, without warrant of law.”Footnote ⁶⁶ Barring that, Dudley believed that Everett might get a short sentence that took into consideration the illegality of his capture and his limited involvement in the initial crime. Despite the American consul's appeal that Everett had been abducted in violation of American sovereignty, Canadian courts convicted Everett of robbery, showing little consideration for the nature of his capture. The American consul succeeded in having Sheriff Waisman charged with kidnapping, but could not secure a conviction.Footnote ⁶⁷

By October 1900, Dudley found additional evidence to support his conclusion that Canadian and American police officers had constructed an informal prisoner exchange system on the West Coast. James Wilson, a retired soldier, escaped an American prison in 1898, taking advantage of his freedom by working in Chilliwack, British Columbia for a time before leaving for Sumas, Washington the day a burglary was committed. American authorities captured Wilson in Deming, Washington shortly thereafter, charging him with having brought stolen goods into the state. Peter Kennedy, the Deputy Sheriff at Everett, Washington, took custody of Wilson. Instead of transporting Wilson to an American jail, he transported him by train across the boundary line into the waiting arms of Canadian officers so that more serious charges could be brought against him.Footnote ⁶⁸

Dudley did not doubt the depth of Wilson's guilt, and expressed little sympathy for his plight. Still, Dudley took offense at the ways authorities on both sides of the line had handled the case. Dudley believed that Wilson could have been extradited with little objection. Instead, Deputy Sheriff Kennedy had circumvented Wilson's rights to an extradition trial in the United States and had interfered with the legal process. Although Wilson still had the right to a trial in Canada, relocating him across the border without an extradition hearing meant that witnesses who might have testified on Wilson's behalf at the initial hearing had to either cross national lines and incur significant costs, or withdraw their support. Dudley cautioned that if irregular seizures persisted, the “liberty of the citizens of the United States all along the boundary, [would] be very much in danger.”Footnote ⁶⁹