History of Dakota Territory, volume I, Part 144

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198

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Michael Renville, a gray-haired man of sixty-five, next spoke, saying :

You have heard about the mistake of the surveying. I will not speak further of that. When you come here and make friends with us, we are pleased. The Indian suffers from mistakes-he don't know how to correct them. Now that South Dakota has come in as a state, we have one to go to to right our wrongs. The Indians have taken their land in severalty. They are waiting for patents. The Indians are anxious to get patents. We are willing the surplus land should be sold. We don't expect to keep the reservation. We want to get the benefit of the sale. If the Government will pay what they owe, we will be pleased with the opening. There will be left over allotments 880,000 acres. If the Government pays what they owe, and pay what they agree per acre, we will be pleased with the opening. When the Government asks me to do anything, I am always willing to do it. I hope you will try to get the Government to do what is right. If the Government will do this it will benefit both the Indians and the whites. (The speaker held up a half dozen keys, all in a perpendicular position, separated, and said) "we all stand this way. ( He then pressed the keys against one another) we will be as one key. When the reserva- tion is opened we meet as one body. We be as one."

The committee appointed to work for the opening of the reservation consisting of Gen. H. R. Pease, A. S. Crossfield, and D. W. Diggs went to Washington, accompanied by Chief Gabriel Renville, Governor Mellette, and Renville's inter- preter, Rev. Chas. R. Crawford, where they arrived about the 20th of June.

The committee presented the matter to Secretary Noble of the interior depart- ment, by whom they were courteously received, and were informed that the com- missioner of Indian affairs, Mr. Morgan, had recommended that a commission be appointed to visit the reservation and arrange for sale of the surplus lands, when it was expected the patents for lands taken in severalty would be recorded and ready for delivery to the Indians. The commission would probably be appointed by the 15th of July.

A commission composed of Eliphalet Whittelsey, secretary of the board of Indian commissioners, C. A. Maxwell, chief of the land division in the office of Indian affairs, and D. W. Diggs, of Milbank, S. D., was appointed in November.

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HISTORY OF DAKOTA TERRITORY

1889, to negotiate with the Wahpeton and Sisseton for the sale of their surplus lands. The Whittelsey commission completed their mission and agreed upon a treaty whereby about a million acres of the Sisseton reserve in Roberts County was to be sold to settlers at $5 an aere. The Government agreed to pay annii- ties of $360,000 at once, with a bonus of $18,400 per year for twelve years, and ratified a bill for right of way against the Chicago, Milwaukee & St. Paul Rail- road Company. Every resident Indian regardless of age of sex, was to have too acres allotted.

YANKTON RESERVE OPENED

The Yankton Indians whose reservation was in Charles Mix County had nearly all selected their lands in severalty in 1889, taking up that portion lying nearest the Missouri River. The remainder of the reservation was to be opened to the occupation of white settlers under rules and regulations prescribed by the general land office. This movement on the part of this tribe was prac- tically voluntary. They had become civilized Indians, lived in houses, and were mainly engaged in agricultural pursuits and stock raising, and could support themselves, but they owned the portion of the reserve not needed for their use. some 200,000 acres, which would yield them a large sum when it was disposed of. Lands were appreciating in price at that time.

MANDANS AND GROS VENTRES

The Northwest Indian Commission concluded a satisfactory agreement with the Gros Ventres, Mandans and Arickaree Indians at Fort Berthokl, in January, 1887. These Indians ceded to the United States all that portion of their reserva- tion lying north of the 48th parallel of latitude, and also the larger portion of the territory lying between the Missouri River and the Fort Buford military reser- vation. The Indians agreed to take lands in severalty on their diminished reserve.

DEVIL'S LARE INDIAN RESERVATION

About one thousand Sioux Indians in charge of Major Mclaughlin had a small reservation of a half million acres on the south bank of Devil's Lake. which the white settlers of Benson, Eddy and Ramsey counties thought should be thrown open to settlement. There was twice as much land as the Indians could use and immigration was flocking in rapidly. The Indian population at the time was of the best of that race, having been for many years under the wise and kindly care of Fort Totten authorities and excellent agents with the best of Christian influences supplied by the Catholic societies, but they lacked enterprise and seemed to have reached the termination of their upward ascent in the scale of civilization. Congress had already been memorialized by the Legis- lature to provide for extinguishing the Indian title. The Devil's Lake reservation consisted of about three hundred square miles or about a quarter million of acres, and there were 937 Sisseton, Wahpeton and Cut Head Sioux who would be en- titled to allotments, which would take half the land. The Indian bureau was not inclined to favor any treaty but preferred that the reservation take its course under the recent severalty act.

CHAPTER LXVI GRASSHOPPER YEAR-DESTITUTION IN FARMING DISTRICTS 1874

THE REPEAL OF THE EXEMPTION LAW- CONGRESS CURES THE FAULT OF THE LEGIS- LATURE-POSTOFFICES IN THE TERRITORY-TILE DAILY PRESS AND DAKOTIAN- GRASSIIOPPERS DEVASTATE THE GRAIN FIELDS IN 1871-LEGISLATURE ENACTS A RELIEF BOND BILL-RELIEF SOCIETIES FORMED-GOVERNOR ISSUES AN APPEAL TO TIIE PUBLIC-IOWA AND NEBRASKA IN LIKE CONDITION -- TRI-STATE RELIEF CONVENTION AT FORT DODGE-GRASSHOPPER LORE-SONS OF TEMPERANCE, GRAND LODGE-DAKOTA'S CENTENNIAL COMMISSION-TERRITORIAL AGRICUL- TURAL FAIR-DESTRUCTIVE FIRE AT VERMILLION-MINNEAPOLIS VISITORS.

EXEMPTIONS-CONGRESS APPEALED TO

At the first session of the Dakota Legislature, convened in March, 1862, a law was enacted entitled "An act exempting property from execution, writ of attachment, or any other final process of a court," and also three other enactments of like character, governing and enumerating exemptions. These laws defined what should constitute a homestead, enumerated the real and personal property that should be exempt, and was considered a very liberal law in favor of a debtor. Its purpose, as avowed at the time it was enacted, was to protect the citizens of Dakota, who were as a rule people of very moderate fortunes, from their outside creditors until such time as by industry and frugal living they could discharge their obligations without impairing their business or means of gaining a livelihood. The estimated money value of the personal property exempt under the law was $1,500. A supplemental act passed at the same time declared that all property of whatever value or amount acquired by any party during his or her residence in the territory should be exempt from levy, seizure or sale by virtue of any execution, writ of attachment, or any other final process of a court, founded upon any debt, demand or liability, contracted or incurred with- out the limits of the territory.

The purpose of the enactments was to give the poor and worthy time to accumulate sufficient worldly wealth to enable them to discharge their old obli- gations without taking their "coats off their backs," or depriving them of the means of transacting whatever business they were engaged in here in the terri- tory. It was anticipated that the law would be largely modified as soon as conditions favorable to citizens of the territory would justify it. It was further urged in justification of the measure that it would encourage the coming to Dakota of thousands of worthy unfortunate people in the states, who had met with reverses which they were unable to repair in their old home and who would seek an asylum from the rapacity of remorseless creditors in a territory where their accumulations would be protected from seizure for their old debts until such time as they were able to cancel all such obligations, and leave them in a situation to conduct their business affairs to advantage. Whether it served to · attract any considerable number of people to the territory is doubtful, but it is certain that it did not deter anyone from coming that wanted to come. The law,

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GOVERNOR JOHN L. PENNINGTON

Fifth governor of Dakota. Served from January 1925 to May 157s. Appointed from Mabamn.

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HISTORY OF DAKOTA TERRITORY

however, was, in time objected to by many in the territory, as an injury to the credit of our home merchants and business men generally and the legal fraternity was largely inimical to it; indicating that in the judgment of many people the time had arrived when the law could be materially modified without injury to the worthy people of the territory, and at the same time remove from the statute book all ground for reasonable complaint against the homestead and exemption system of the territory. There had been attempts made to change it at former sessions, but these modifications were not material. At the session of 1874-75, the Legislature enacted a law, introduced as a bill by a member of the Coun- cil, which was innocently entitled "An act making the conveyance of home- steads not valid until the wife joins in said conveyance." This bill defined the homestead, and provided for its conveyance according to the terms of the bill, but a section was added-section 20-which provided that "chapter 37 of the laws of 1862, and all acts and parts of acts inconsistent with the provisions of this act are hereby repealed." This section 20 repealed the highly prized exemp- tion laws, but it had not been observed by any of the members, nor by the governor when he approved it on the 14th of January. 1875. The Legislature adjourned, sine die, the following day.

Early in February, as Ilon. S. L. Spink, a prominent Yankton lawyer, was looking over the list of new laws enacted, he discovered that the old exemption law had been repealed, and when he had made his discovery public, the local news- papers shortly announced that "a wave of passionate excitement was spreading outward to the remotest corners of the territory. carrying to each toiling home- steader the dire intelligence that the law no longer protects the fruits of his labor from the rapacity of merciless creditors."

A public meeting was held at Yankton following the exposure, which was attended by nearly every able-bodied citizen of the place; a number of speeches were made all representing that the repeal of the exemption law was a calamity much more serious than the grasshopper plague, which, the season previous, had partially destroyed the crops and entailed such destitution upon the people that the territorial authorities had been compelled to issue a public appeal for relief. One speaker, General Beadle, stated that he had recently attended the Fort Dodge seed convention, which had been hell to provide means for furnishing small grain seed to the farmers of the Northwest who had been rendered destitute by the grasshopper raids of the previous season. He had "also labored to secure the charity of the people in behalf of Dakota's poor, and now to return and find that such a demon of destruction as this had been turned loose upon the people, was a fit subject for tears."

Another speaker, Mr. Spink, stated that in the protection of personal prop- erty from seizure, all the western states and territories had adopted the broadest policy, the amount of exemption to individuals ranging from $500 to $2,500. In Dakota $1,500 worth of personal property had been put beyond the reach of creditors, previous to the enactment of the last Legislature which had repealed the law. A few had deemed it too liberal, but no previous Legislature had been willing to submit to a reduction. We were all inviting people within our borders where they could be protected from the results of previous misfortunes from the rapacity of unserupulous creditors. A large proportion of our farming com munity had gone largely into debt for machinery and their crops had been ent off, which placed them in just the situation where foreign creditors could now strip them of all their possessions. With this new law enforced there were 5.000 men in Dakota who could not live here. It took his last horse his last bed-his last cookstove-all he had to carry on his labor for support

Another prominent lawyer, Bartlett Tripp, who spoke, gave it as his option that the law exempting personal property had been fully repealed, though Le land not had an opportunity to examine the authorities at length He sail thit more devilish scheme could have been devised to take from the poor willen cr

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HISTORY OF DAKOTA TERRITORY

orphan its last dollar of money and last crumb of bread." He was of the opinion that the Congress of the United States would annul this act of the Legislature.

Another speaker, Doctor Burleigh, stated that "to get up some morning and find that several of Dakota's counties had been suddenly swallowed up by an earthquake would have been but of passing consequence to him when compared to the surprise and indignation which the discovery of this act of the Legislature had occasioned." He had not the least doubt but that "it affected virtually the repeal of all our exemption law, for when a law was repealed its amendments went with it-that was a settled principle."

Hon. George H. Hand, the secretary of the territory, stated that in his opinion the law exempting personal property was fully repealed, and placed Dakota in a position unlike that of any other state or territory, and "the only way out of it was to appeal to Congress to help us out." He further stated that the bill had been brought to the governor for his signature during the closing hours of the session when he was overwhelmed with business. It was not possible for him to examine it in detail. Its title recommended it. The governor had already started for Washington where he would endeavor to induce Congress to nullify this law. Mr. Hand further stated that he was "not prepared to say whether the bill was passed through carelessness or with premeditated intent. The words 'thirty- seven' and 'May 12th' in the repealing section were in his opinion in Moody's handwriting in blanks left when the original section was drawn. The original bill was introduced in the Council by Mr. Sheafe, of Union County, and con- tained only about a dozen lines, all in accordance with the title. It was made over in the House and entirely changed." It was discovered that there were but two votes against the bill on its final passage in the House, and these were cast by Ole Sampson and Mr. Anderson, of Yankton County.

A committee consisting of General Beadle, W. S. Bowen and J. R. Hanson had been appointed to draft resolutions or rather a statement of the case for presentation to Congress, with the view of inducing that body to nullify the re- pealing act of the Legislature. The committee reported the following preamble and resolutions :

Whereas, The Legislative Assembly of the Territory of Dakota, at its last session, passed an act to provide that the conveyance of homesteads should not be valid without the wife's signature; and,

Whereas, This act appeared by its title and general purpose to be one which all good citizens might endorse and approve: but when examined it proves to be technical, changing methods by which homesteads may be claimed and placing difficulties in the way which are unusual and unnecessary ; that there appears to have been added to the bill sections written by another hand, perhaps after the preceding sections had been acted upon, and not by regular amendment but in an illegal and extraordinary manner; and,

Whereas, One of these added sections, the last of the law, was so written with blank spaces left for references for laws to be repealed, and were in turn filled by another hand, so that it repealed chapter 37 of the Laws of 1862, and cleared from our laws all amend- ments thereto by any subsequent assembly, and it thus, insidionsly, by numbered references, and without any notice in the substance thereof or title, but with the deceptive appearance and false pretense that it was in furtherance of the main body of the law, swept from our statutes every law or provision of law protecting the personal property of our citizens from sale under execution or any final process of a court, thereby leaving our people in this time of calamity and general suffering without any protection from creditors for even the smallest part of the necessaries of life; and the utter destitution thus produced in personal property and consequent forced abandonment of the homestead, would leave that also subject to the officers of the law; Therefore,

Resolved, That we hold the knowing and responsible authors of this act as guilty of a gross violation of legislative duty, and a dishonorable betrayal of the public trusts con- fided to them; of fraud upon the legislative body and the dearest rights and present neces- sities of our people ; of a heartless disregard of the trials of our needy settlers under the privations of the grasshopper visitation; and there is no escape from an acknowledgment of their guilt but by a plea of ignorance, carelessness, or gross incompetency for the duties before them.

Resolved, That since this ontrage was not discovered until after the adjournment of the Legislature, and since its effects are most disheartening to our citizens and destructive of the most vital interests of the territory, already crushed by unusual and unprecedented

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difficulties ; and since there is no other alternative; we most earnestly pray Congress to relieve us by abrogating and annulling section 20 of said act of our assembly, and that this may be done at its present session.

Resolved, That these resolutions be published and transmitted to our delegate in Congress, and he be requested to use every proper effort toward securing the early repeal of the law in question.

Signed by W. H. H. Beadle, chairman; J. R. Hanson, W. S. Bowen, Yankton County ; U. S. Weston, Union County; S. R. Dix, Hanson County; S. F. Andrews, Turner County ; J. M. Blanding, Richland County; Fred J. Cross, Minnehaha County; Luman N. Judd, Bon llomme County ; R. R. Briggs, Clay County.

MOODY'S REPLY

Col. G. C. Moody, one of the members of the House from Yankton County, and reputed author of the act repealing the exemption law of 1862, was the target for much unfriendly criticism throughout the territory. In answer to the charges, he claimed that the exemption law of the territory had not been repealed. though none of his brother lawyers agreed with him. Moody enjoyed the reputa- tion among both the members of the bar and the people of being one of the ablest lawyers in the territory, and he was usually found connected as counsel with all important cases ; but his statement regarding the effect of the homestead law with its clause repealing the law of 1862 was not credited. Finally, Mr. Moody, in self-defense, gave out a public statement concerning the bill and its effect, in which he explained his view of its effect as a repealing measure ; and asserted that all the indignation expressed against himself was the result of wrong information regarding the matter. In his statement the accused legislator says, in part, in explanation :

It is claimed by those who favor the view that the law of 1866 is repealed, that the repeal of the statute of 1862 necessarily repealed the statute of 1866, because in terms the statute of 1806 purported to be an amendment of so much of the statute of iShe as relate 1 to personal exemptions. This proposition 1 most emphatically deny to be correct. The repeal of a statute does not necessarily operate as a repeal of the amendments thereto. Sometimes the repeal of a statute operated, not as a repeal of, but to render nugatory and useless the amendments; for instance, where there is not enough left of the amendments. when the law itself is wiped out, to constitute an intelligible provision. 1 insist this is the true construction. Each amendatory act as it is made constitutes an act in itself, separate and independent, and if there is enough of it to constitute a law of itself-in other words. if it is full and complete in itself, it will stand, notwithstanding the repeal of the original act. A contrary doctrine would lead to absurdities. Legislation upon any subject which has before been legislated upon by that body is simply an amendment of the former legisla- tion, no matter in what form it is put. And these gentlemen would have us take care and never repeal a former law because it would operate as a repeal of all the later laws up in the same subject.

Now, applying this principle to the question under discussion, we find that in ise the Legislature enacted an exemption law, the first seven sections of which related to home stead exemptions, and the last two (eighth and ninth), related to exemptions of personal property. This law so far as it relates to homesteads, was crude, indefinite, incomplete. and unjust, under which the grossest frauds could be perpetrated upon the credvor and the most serious wrongs upon the family of the homestead claimant. In iÑto the begi lature passed another act amending the sections relating to personal exemptions, enlarging their provisions, using the not infrequent form, "be amended so as to read as follows" and making a perfect and complete law on that subject, which in effect repealed so much of the law of 1862 as related to such exemptions, as it substituted another law in its place containing the provisions of the law of 1802 and other important provisions, und t il last session enacted a more liberal, more definite and more just homestead low and then in terms in the same act, repealed the whole of the law of 1802. Now I'mnot that the less of 1800 being complete in itself, being a later and separate act, independent as an etu ment, was not repealed by repealing the law of 1802, but stands in full force and it and is the law governing exemptions of personal property in this territory toules , ail ton claim otherwise is absurd. The form of the amendment is, as the Court of Appe hel New York says in several cases, only a matter of convenience and the amendment not relate back to and become incorporated in and so blended with the orin 1 ct fall with the repeal of the original act; and in the great State of New York where the form of enactment is very frequent, and where former acts are often repeal dl . lower has, so far as 1 have been able to find upon exummati n. hit the tem rity to che1 1 1 1

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the repeal of the original act repealed, by implication, and by operation of law, the amenda- tory act; but it is left for the wisdom of this territory blessing this city by its presence, to make this new discovery.

CONGRESS TO TIIE RESCUE

In the meantime a messenger, the governor has hastened to Washington and laid the matter before Delegate Kidder, who forthwith entered upon the task of procuring from Congress an enactment that would save the territory from the dire calamities that might result from a loss of its personal exemption law, if it had been lost, and in due course and within two days before the session of Con- gress came to an end, the following was enacted :

An Act to declare the true intent and meaning of the 20th section of an act passed January 14th, 1875, by the Legislature of the Territory of Dakota, entitled "An Act making the Conveyance of Homesteads not valid unless the wife joins in the conveyance."

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled :

That the 20th section of the act named in the title shall not be construed as an absolute repeal of chapter 37 of the laws of Dakota, approved May 12th, 1862, but only as repealing so much of said chapter 37 as is inconsistent with the first named act, and no other effect shall be given to said 20th section. Approved, March 2, 1875.

And thus the controversy over the repeal of Dakota's exemption law was quieted. The question as to whether the law of 1866 was or was not repealed by the law of 1875, does not seem to have been satisfactorily answered by the enactments of Congress, as that body on the eve of adjournment doubtless felt Dakota was having troubles enough with its grasshopper plagues without being disturbed by doubts as to its personal exemptions ; and the foregoing declara- tive act of Congress was sufficient to settle the question as far as the exemption law of the territory was concerned, whether it was enacted in 1862 or 1866. That the claimed offense of Representative Moody was not considered a serious one, is shown by the action of the Dakota bar three years later, which gave its unanimous endorsement to Mr. Moody's application for appointment of United States judge in the Black Hills district, and the appointment quickly followed.

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History of Dakota Territory, volume I, Part 144

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920 Publication date: 1915 Publisher: Chicago, Ill. : S.J. Clarke Publishing Company Number of Pages: 1198

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198