1. Rube ; n G. Rumbaut, “Pigments of Our Imagination: On the Racialization
and Racial Identities of ‘Hispanics’ and ‘Latinos,’” in HOW THE U.S.
RACIALIZES LATINOS: WHITE HEGEMONY AND ITS CONSEQUENCES 15-36
(Jose ; A. Cobas, Jorge Duany & Joe R. Feagin, eds.) (2009).
2. The facts of the nighttime abduction—as well as this article’s title—are drawn
from LINDA GORDON, THE GREAT ARIZONA ORPHAN ABDUCTION (1999).
The examination of the legal content and context—the trial, strategy, witness
testimony, objections, appeal strategy, arguments and decisions—was done
by this article’s author, based on legal documents she read and analyzed.
3. Arizona 1905, Arizona Territorial Supreme Court, State of Arizona
Department of Library, Archives, and Public Records, Phoenix, 9 Ariz. 105,
79 P. 231 (1905).
4. 203 U.S. 429 (1906).
ager of the Detroit Copper company store,
introduced a bill to change the territorial
law of custody and guardianship retroactively to give probate judges more discretionary
power—power that Judge Little had lacked.
As president of the upper house, Ives tried
to kill it, but it passed without being
Appeal to the U.S.
The Foundling Hospital appealed the case
to the U.S. Supreme Court. 4 Ives tried
to have the Arizona Statement of Facts
revised, without success. In April 1906 the
case was heard and in December dismissed
for lack of jurisdiction. Ives had argued that
the Foundling Hospital has absolute right
to custody under parens patriae, habeas corpus is a question of personal freedom, and
as a territory, Arizona has no comity and no
right to deprive New York of its infants.
The defense argued that a New York
corporation has no power or standing in
Arizona, habeas corpus is impossible for a
child because a child has no right of personal freedom, and, once again, the main
argument, best interest of the child.
Justice Day wrote the opinion and said
it was not necessary to consider the Arizona
court’s findings of fact, but then went on
to incorporate the defense language. The
Court recited a history of the writ and of
parens patriae but said best interest was
the original principle. Like the Arizona and
Massachusetts courts, the justices said the
case would not be decided on legal rights
but on best interests.
The Court found that the case was not
a question of freedom, because infants are
not entitled to freedom, only to care and
custody; that the Sisters voluntarily took
the children to Arizona and placed them in
the custody of unfit persons; and therefore,
the court had no jurisdiction.
This incident occurred a year after the
hard-fought 1903 Clifton–Morenci miners’
strike. The whites viewed their actions as
restoring order, the Mexicans as imposing
more oppression. The U.S. Census at that
time considered Mexicans white. Irish
Catholics were also considered white but of
some other unspecified race. An east/west
dichotomy also existed, as in the East they
viewed the action as mob rule, but in
Arizona they viewed it as taking care of
The media took different views of the
decision. Western papers viewed it as a vic-
tory for Arizona Anglos over New York
Catholics; Arizona papers said it was a vic-
tory for states’ rights over a corrupt New
York State; Southwest coverage sensational-
ized the story against the Mexicans, claim-
ing they were buying children for slavery.
Some papers spoke of religious bigotry, but
only one—the Democratic Dallas Times
Herald—spoke of racism. Some Eastern
Republican papers thought the families
The plaintiff focused on religion—the
threats to the Sisters, the priest and Swayne.
The defense attorneys focused on race.
Today, our ethical codes require that we
represent, prosecute or judge people based
on the Rule of Law, not on race, religion,
class, gender, sexual orientation, disability,
ethnicity or any other non-relevant status—
a worthy goal to seek. AZ AT