South Dakota Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

Where the law came from

All of South Dakota came to the United States in the Louisiana Purchase of 1803, but no French or Spanish law was ever applied to it. The land passed through a chain of American territorial governments instead. It lay for a time within Michigan Territory and then Wisconsin Territory; Minnesota Territory took in the part of Dakota east of the Missouri river, and Nebraska Territory from 1854 to 1861 the part west of it. When Minnesota became a state in May 1858 the country between was left unorganized. The first cession of land within Dakota was made by treaty with the Yankton in 1858, white settlement began in 1859, and Congress organized Dakota Territory by the act of 2 March 1861¹.

The tradition underneath all of this is English common law, carried west through those territorial governments. What Dakota then did was write it down. David Dudley Field drafted a civil code that New York never enacted; Dakota Territory took it up by an act approved 12 January 1866, becoming the first place anywhere to put it on the statute books, and revised and re-enacted it in 1877². From 1866 onward the sentences a researcher reads are New York's, set out as numbered sections rather than gathered from court decisions.

What governed before 1877

The first territorial legislature met in March 1862 and passed a civil code and a criminal code, and eleven later sessions amended, repealed, and re-enacted them³. The Civil Code proper was enacted on 12 January 1866 and printed in full in the session volume for that year², and the 1877 revision reworked it. Most rules survived the revision unchanged and kept their section numbers, but some did not, and the ones that changed are noted where they arise below. For a record made between 1866 and 1877, read the 1866 text; for one made after, the 1877 text.

Each spouse owned separate property

Husband and wife each owned their own property, and neither gained ownership of the other's by marrying. A wife could convey her separate property without her husband's consent, her earnings were not liable for his debts, and neither spouse was answerable for the acts of the other⁴. There is accordingly no pool of jointly owned marital earnings to look for in a South Dakota estate.

A surviving spouse took a fixed share of the estate as owner. Dower — a widow's right to use a share of her late husband's land for the rest of her life — and curtesy, the widower's matching right in his late wife's land, were abolished by a single line of the Civil Code in 1866; the abolition was kept in the 1877 revision, once among the rules on husband and wife and once in the law of inheritance, and it still stood in 1948⁵. That is why a South Dakota husband's deed of his own land ordinarily carries his signature alone.

Probate — wills, estates, and guardianships — belonged to the probate court of the county under the territorial codes and to the county court by the code of 1939⁶. Those files are local and civil, and they hold petitions, bonds, orders and reports of sale, guardianship papers, wills, and letters of administration.

Legal Age of Adulthood

Twenty-one for men and eighteen for women

Under the Civil Code of 1866 a minor was anyone under 21, with no difference between the sexes⁷. The 1877 revision split them: minors were then males under 21 and females under 18, and everyone else was an adult⁸. That split held through 1950, and still stood in the code of 1939⁹. From 1877, then, a woman came of age three years before her brother, which matters when reading a guardian's final account or a deed.

What a minor could and could not do

A minor could own property of any kind at any age. The code said that any person, whether citizen or alien, could take, hold, and dispose of property, real or personal, and it set no qualification of age, sex, or race¹⁰. The limits were on dealing with that property, and they tightened in 1877.

Under the Civil Code of 1866 a minor could not appoint someone to act for him, but he could make a conveyance or any other contract in the same manner as anyone else, subject only to the right to back out of it — which he could do before majority or within a reasonable time afterwards, on handing back what he had received. A contract for necessary support could not be undone¹¹.

From 1877 the limits were firmer. A minor still could not appoint someone to act for him, and now, under 18, he could make no contract about land, or about goods he did not have in his own possession¹². Other bargains he could make like an adult, subject to the right to disaffirm — to back out — either before majority or within one year after; a bargain made after 18 could be backed out of only by handing back what had been received¹³. A contract for necessary support stood, and could not be undone at all¹⁴.

No one, parent or otherwise, had power over a minor's property except by being appointed guardian¹⁵. A parent holding a child's land or money therefore appears in the probate files as an appointed guardian, or does not appear at all.

Marriage

Who was old enough to marry

The marrying age rose once. Under the Civil Code of 1866 an unmarried male of 14 and an unmarried female of 13 could consent to marriage¹⁶. The 1877 revision raised those figures to 18 and 15¹⁷, and 18 and 15 were still the rule in 1948¹⁸. So a marriage before 1877 is measured against 14 and 13, and one after against 18 and 15.

Because full age was 21 for a man and 18 for a woman, a couple could be old enough to marry and still be minors.

Licenses and parental consent

The territorial codes required no marriage license at all, and neither of them asked for a parent's consent before the wedding. Consent mattered only afterwards, as a ground for undoing the marriage, and the two codes drew that ground differently.

Under the Civil Code of 1866 a marriage could be annulled because the party seeking the annulment had been under the age of consent, with no mention of a parent at all — and even that ended if the couple freely lived together once that party came of age. Parental consent appeared in one narrow place only: a marriage could be annulled where the wife had been under 14, the marriage was made without the consent of the person having legal charge of her and was a punishable offense on the husband's part, and the couple had neither lived together nor ratified the marriage after she turned 14¹⁹.

The 1877 revision widened it. From then on a marriage by someone under the age of consent, made without the consent of a parent, guardian, or person having charge of the party, could be annulled — and again that ended if the couple freely lived together once the underage party reached the age of consent. The same section made it a misdemeanor for a minister or magistrate to solemnize such a marriage knowingly²⁰. So for the whole territorial period there is no license application and no filed consent to look for.

Licenses came in with statehood. From 1890 a license had to be obtained from the clerk of the circuit court of the county where the marriage was to be celebrated, before any marriage in the state. The same act told the clerk not to grant one where either party was under the age that made a marriage valid, nor, where either party was a minor, without the previous consent of that minor's parent or guardian; and where the clerk did not know how old the parties were, he had to take the testimony of disinterested witnesses. That is the rule the code of 1939 still carried²¹. The rule directed the clerk rather than the couple: a minor's marriage celebrated without that consent was valid, and the penalty fell on the officer²². An underage marriage in a family record almost certainly stood, and a missing consent paper proves nothing about it.

Marriage without a ceremony

Marriage was a civil contract throughout, but what it took to complete one changed in 1877, and the change runs the wrong way from what a researcher might expect — the earlier rule was the looser one.

Under the Civil Code of 1866, consent alone made the marriage. The code said that marriage arises out of a civil contract to which the consent of parties capable of making it is alone necessary, and it put solemnization in a separate article concerned with authentication rather than with the making of the marriage²³. A present agreement between two capable people was a marriage, and nothing else was needed.

The 1877 revision added a second step: consent alone would no longer constitute marriage, and had to be followed either by a ceremony or by a mutual assumption of married life²⁴. The courts later set out what that second route took: an agreement, made then and there, that the two were husband and wife from that moment; an immediate and honest taking up of married life, meant to last for life; and a belief on both sides that they were in fact and in law married²⁵. A couple who met that test were married, with no license and no minister.

Common-law marriage lasted until the legislature ended it for unions entered on or after 1 July 1959²⁶. Through 1950, then, a missing marriage record is ordinary rather than suspicious.

One record does depend on the date. The written declaration of marriage — the paper a couple married without a ceremony could sign, acknowledge, and record among the deeds — first appears in the 1877 revision, alongside the requirement that a ceremony be authenticated and the celebrant's certificate filed within six months. The 1866 code provided only for solemnization and the certificate, and had no declaration at all²⁷. Before 1877, an unsolemnized marriage therefore left no county record whatever; after 1877 it may have left a recorded declaration. Where such a marriage had to be proved, it was proved in the probate file or the circuit court by testimony about the couple's reputation and conduct, and that testimony is often the fullest family evidence in the file.

A marriage valid where it was made was valid in South Dakota²⁸.

Marriages the law would not allow

Some marriages were void from the beginning — never a marriage at all, at any point, whatever the couple believed. Marriages between parents and children, ancestors and descendants of every degree, brothers and sisters of the half as well as the whole blood, uncles and nieces, aunts and nephews, and cousins of the half or whole blood were incestuous and void from the beginning, whether or not the relatives were born inside marriage²⁹. A marriage of a stepfather with a stepdaughter, or of a stepmother with a stepson, was void as well; and a marriage was voidable — good until a court undid it — where one party was physically unable to enter the marriage state, or where consent had been obtained by trickery or force³⁰. A second marriage during the life of a former husband or wife was void from the beginning, unless the first marriage had been annulled or dissolved, or the former spouse had been absent and not known to be living for five straight years or was generally believed dead — in which case the second marriage stood until a court declared it void³¹.

Marriage between races

From 1909 a marriage between a white person and a Black person was void in South Dakota. An act of 1913 replaced that law and widened the bar to persons of, in the statute's own words, "the African, Corean, Malayan, or Mongolian Race." Marrying or living together across that line was a felony, punishable by a fine of up to $1,000 or up to ten years in the state prison, or both; issuing a license for such a marriage or performing one was a misdemeanor; and any such marriage was void from the beginning. The code of 1939 carried the rule forward in the same terms, and it was repealed in 1957³². Between those dates such a couple could not marry in the state, so look for the marriage in a neighboring state, or for a long life together with no marriage record at all.

Marriage by tribal custom

The territorial code recognized tribal marriage on its own terms: Indians who married according to Indian custom and lived together as husband and wife were lawfully married³³. Such a marriage created no county record. It was proved instead when it mattered — most often in a federal heirship proceeding over an allotment, a hearing held to decide who inherited the parcel — and those Indian probate files, together with the agency censuses, carry the marriage and parentage evidence that the county books do not.

Property Ownership

Which men could own land

Any man could own land at any age, taking it by purchase, gift, or inheritance; at majority he could buy, sell, mortgage, and convey it in his own name. The rule was stated once and plainly, in the same section number in both territorial codes: any person, whether citizen or alien, could take, hold, and dispose of property, real or personal. The section named no qualification of age, sex, or race, and no other section of either code supplied one¹⁰. The restrictions that touched Native families ran through federal law over reservation land, not through the state's law of conveyancing, and are set out under "Land held under federal law," below.

Foreign birth was almost never a bar. An alien could inherit as fully as a citizen, and no one able to inherit was shut out because a relative was an alien³⁴. Buying was restricted for two years only: a federal act of 3 March 1887 limited the acquisition of real estate in the territories to citizens and to those who had declared their intention to become citizens, exempting land aliens already owned on that date and any alien who became a bona fide resident. The act bound Dakota Territory from 1887 until statehood in 1889³⁵. A man claiming land from the public domain under the federal homestead law also had to declare his intention to become a citizen before the patent issued, so a homestead file will often carry a naturalization declaration.

Women and land ownership

A single or widowed woman — a feme sole, "woman alone" in the old law French — owned, bought, sold, and mortgaged land exactly as a man did, under the same section that governed everyone else¹⁰.

A married woman did too. Under the Civil Code a wife could convey her separate property without her husband's consent, and husband and wife could hold land together as joint tenants, each owning the whole with the survivor taking it outright, or as tenants in common, each owning a distinct share that passed to their own heirs. Her earnings were not liable for his debts; her separate property was not liable for his debts but was liable for her own, contracted before or after marriage; and neither spouse was answerable for the acts of the other. The code of 1939 carried the same scheme, and the state constitution guaranteed it⁴.

One record follows directly from this. A wife could make a full inventory of her separate personal property, sign it, have it acknowledged, and record it with the register of deeds, where the filing served as notice and as evidence of her title⁴. A married woman transacting in her own name in the deed books is the normal case here, not a sign that she was widowed.

A wife's own deed and the separate examination

Her husband's consent was one thing; the way her signature was taken was another. Under the Revised Codes of 1877 an officer could not take a married woman's acknowledgment unless he first made her acquainted with the contents of the paper on an examination held out of her husband's hearing, and could not certify it unless she then told him she had signed freely and did not wish to take it back. Her conveyance had no force until acknowledged in that way³⁶.

That requirement was short-lived. In February 1881 the legislative assembly repealed it outright, over the governor's veto, and rewrote the companion section to read that an instrument executed by a married woman has the same effect as if she were unmarried and may be acknowledged in the same manner; the special printed form of acknowledgment for married women went with it³⁷. That sentence then ran unchanged through every later compilation to the code of 1939³⁸.

So a certificate reciting a private interview dates a deed to the territorial years before 1881, and is evidence the woman was married on the day she signed. After February 1881 no such certificate was taken, and its absence says nothing at all.

When a wife had to sign her husband's deed

Since there was no dower to give up, a husband's deed of his own land carried his signature alone. The exception was the family homestead. A conveyance or encumbrance — a mortgage or other charge on the land — of the homestead had no force unless husband and wife, where the owner was married and both lived in the territory, joined in and signed the same paper³⁹, and the rule was still in force in 1948: neither spouse could convey or encumber the homestead by his or her sole deed⁴⁰. Where one spouse was insane or mentally incompetent, the other could convey his or her own title by separate deed under a set procedure⁴¹.

Two signatures on a South Dakota deed therefore usually mark a homestead conveyance, and they confirm that both spouses were living and married on that date. One signature on other land is ordinary and says nothing about whether the man was married.

Which children could own land

A child could own land at any age, by inheritance, gift, or purchase, under the same section that covered everyone¹⁰. Conveying it was the constraint: under 18 a minor could make no contract about land, and a minor's other bargains could be backed out of¹². A minor's land was therefore sold by a guardian, who had to petition the probate court, set out the condition of the estate and the reason a sale was needed, and obtain an order⁴². That produces a petition, an order of sale, and a return — a set of papers that usually names the child, the deceased parent, and the other heirs.

Witnessing a deed

South Dakota conveyancing ran on acknowledgment rather than on witnessing. A deed was made ready for recording when the person who made it appeared before an officer, such as a notary or a judge, and formally declared that the deed was his. A deed not acknowledged could still be recorded if proved by a subscribing witness — one who had signed the deed — or by the party who executed it, and the code set no age for such a witness⁴³. A witness of any age could serve if competent, but the practical point is that most South Dakota deeds have no witnesses to trace: they carry a notary's certificate instead, and the notary is not a relative.

Land held under federal law

Most Indian land in South Dakota lay outside state law. The General Allotment Act of 1887, usually called the Dawes Act, divided reservations into allotments — individual parcels — and held each in trust for twenty-five years under a trust patent, during which the land could not be sold and could not be taxed. When the trust ended and a fee patent issued, the parcel became sellable and came under state law and the property tax⁴⁴. The Great Sioux Reservation was broken up and its surplus opened to settlers by the act of 2 March 1889⁴⁵.

For a family holding allotted land, the ownership and the heirship evidence sit in the allotment and trust files and in Indian probate records kept under federal authority, and not in the county deed books, until a fee patent issued.

Inheritance

Land and goods passed together

When a person died intestate — without a will — the real and the personal property passed together. Under the Civil Code of 1866 both went first to the personal representatives, who made the family provision the code directed, paid the debts, and distributed the rest⁴⁶; under the 1877 revision both passed to the heirs, subject to the probate court and to the possession of an administrator while the estate was settled⁴⁷. Either way, land and goods ran under one set of rules, and the surviving spouse took a share as owner rather than a life interest⁵.

The surviving spouse's share

The rules changed substantially in 1877, and again in one respect by 1939, so the first thing to establish is which volume was in force when the person died.

Under the Civil Code of 1866 the shares turned on the survivor's sex as much as on the family. A surviving husband took the whole estate, even the property that had been his wife's own, unless she had disposed of it during her life or by will. A surviving wife took one-third and the lineal descendants two-thirds, however many children there were. Where a widow survived with no descendants but with a father, mother, brother, or sister of her husband, she took the whole estate if it was worth $10,000 or less, $10,000 of it if the estate ran between $10,000 and $20,000, and half of it if the estate was larger, with the remainder going to his father and mother or the survivor of them, or to his brothers and sisters if neither parent was living. Where there was no descendant, parent, brother, or sister, she took everything; where there was no surviving spouse, the whole went to the nearest lineal descendants⁴⁸.

The 1877 revision dropped that asymmetry. From then on the share turned on how many children survived, and it was the same whether the survivor was the widow or the widower. Where a child had died first, that child's own children took the share their parent would have taken⁴⁹. The table below sets out the 1877 shares and the one later change⁵⁰.

So under the 1877 code a widow with four children took a third and each child a sixth, and a widow with one child took half — where under the 1866 code she would have taken a third in both cases, and her husband, had she died first, would have taken everything. A childless widow's share is the one to check most carefully against the volume in force, because it moved three times across the period.

Children born outside marriage

A child born outside marriage was in all cases an heir of the mother, and inherited from her as if born in wedlock; the child was also an heir of a man who acknowledged himself the father in writing, signed before a competent witness⁵¹. Where such a child died without lawful issue and had been neither acknowledged nor adopted by the father, the estate went to the mother or her heirs, and that rule still stood in 1948⁵².

There were two ways for the father's side to open. A child born before wedlock became legitimate on the later marriage of its parents⁵³. And a father who publicly acknowledged the child as his own, received it into his family with his wife's consent if he was married, and otherwise treated it as legitimate, thereby adopted it, and the child counted as legitimate for all purposes from birth⁵⁴. That second route left no single filing to look for; it was proved after the fact by how the family had lived, which is why the evidence turns up in a contested probate file.

Guardians and the age of fourteen

A guardian took care of the person or the property of another; a general guardian had charge of the person, or of all the minor's property in the territory, or of both⁵⁵. A parent could appoint a guardian of the person or estate by will or by deed, to take effect at the parent's death⁵⁶; otherwise the probate court appointed, and under the territorial Probate Code the father, and after his death the mother while she remained unmarried, was entitled to the appointment if competent and not otherwise unsuitable⁵⁷. Because guardianship of property existed only by appointment¹⁵, a guardianship file is created whenever a minor comes into property — most often on a parent's death — and none is created where the child inherits nothing.

At fourteen the minor chose. For a minor under 14 the probate judge nominated and appointed the guardian; a minor above 14 could nominate his own, and if the judge approved, that person had to be appointed. A child for whom a guardian had been appointed before 14 could name his own guardian on reaching that age⁵⁸.

Guardianship ended when the minor reached majority — 21 for a male, 18 for a female — or married, or when the guardian was legally discharged⁵⁹. Two documents in the file therefore carry dates that bracket a birth year: the minor's own nomination, which shows he had turned 14, and the guardian's final account. A final account filed well before the expected age usually means the minor married, which dates the wedding.

Wills and executors

Every person over 18 of sound mind could dispose of the whole estate, land and goods alike, by will⁶⁰, and a married woman could will away all her separate estate without her husband's consent and revoke it as if she were single⁶¹. The same age governed in 1948, subject to a survivor's right to occupy the homestead⁶².

A will had to be in writing unless it was nuncupative — spoken aloud — and that exception was narrow: the estate could not exceed $1,000, two witnesses present at the making had to prove it, and the maker had to be in actual military service in the field or at sea in peril of death, or expecting immediate death from an injury received that same day. An attested will — one signed in front of witnesses — had to be signed at the end by the maker, or by someone else in the maker's presence and at his direction; the signature had to be made or acknowledged in front of the witnesses; the maker had to declare to them that the paper was his will; and there had to be two attesting witnesses, each signing at the end at the maker's request and in his presence. A holographic will — called olographic in the code, meaning one written, dated, and signed entirely in the maker's own hand — had to follow no form at all and needed no witnesses⁶³. A witness had to write his place of residence with his name, though a failure to do so did not affect the will⁶⁴ — a small gift to the researcher, since it places the witness.

A witness to a will could be of any age if competent, and what mattered instead was interest: every beneficial gift in a will to a subscribing witness was void unless two other competent witnesses had signed, which left the witness with nothing to gain and so able to serve⁶⁵.

No one under the age of majority was competent to serve as executor, and the same barred a minor from serving as administrator, in the territorial codes and in the code of 1939 alike⁶⁶. Administration went by a set order — the surviving husband or wife, or a competent person that spouse asked for, then the children, the parents, the brothers, the sisters, the grandchildren, the next of kin entitled to share, the creditors, and last anyone legally competent⁶⁷; among people equally entitled, males were preferred to females and whole blood to half blood⁶⁸.

One rule about women changed, and it is easy to read wrongly. Under the territorial Probate Code, and still under the Revised Codes of 1903, a married woman could not be appointed administratrix, and an unmarried administratrix who married lost her authority — so a change of administrator soon after a wedding is usually that rule at work, and it dates the marriage. The bar has no counterpart in the Revised Code of 1919, and by 1948 marriage no longer disqualified a woman from serving as either executrix or administratrix⁶⁹.

Taxation

What was taxed

Four taxes on individuals leave usable records across the period. The general property tax fell on the owner of real and personal property, at any age and of either sex, and produced the annual assessment rolls. The road poll tax was a capitation — a flat tax on a person rather than on what the person owned. Towns could levy a poll tax of their own. And in the 1930s the state taxed personal income for ten years and added a retail sales tax.

The road poll tax

Every male between the ages of 21 and 50 owed a poll tax of one dollar and fifty cents, payable in money or by one day's labor each year on the public highway in his own road district, at the time and place the road supervisor directed⁷⁰. The county commissioners' power to levy was capped in the same terms — for roads and bridges, a poll tax of a dollar and a half or one day's work on every male between 21 and 50 — alongside limits on the territorial, county, bridge, and road property taxes⁷¹. The road supervisor made out a list of every man in the district between those ages by the first of March each year, and ordered out everyone subject to road labor between the first days of April and December⁷².

The road poll tax is the most useful of the four for genealogy, because it names men who owned nothing at all. A man's first appearance on a road list puts him in the district and over 21; his disappearance while still living nearby usually means he passed 50.

Town poll taxes

An incorporated town's board of trustees could levy an annual property tax of up to fifty cents on the hundred dollars of valuation together with a poll tax of twenty-five cents⁷³. The tax was the town's to levy or not, so whether anyone in a given town owed it in a given year depends on what the trustees did that year.

Income and sales taxes in the 1930s

Income came first. A gross income tax, falling on receipts rather than on net earnings, was signed on 4 March 1933 and expired by its own terms on 30 June 1935; a net income tax followed, and income taxation in the state ended in 1943. The retail sales tax came in 1935 and has been levied ever since⁷⁴. The income tax is the one that names individuals, and it applied by income rather than by age, so it reaches only people who earned enough to file during those ten years.

Taxable ages at a glance

Courts

Jury service

Jurors were male citizens residing in the county who had the qualifications of electors — that is, of voters — were over 21, and were of sound mind and discretion. Judges, court clerks, sheriffs, coroners, practicing attorneys, and jailers were excluded, as were men under a disabling bodily infirmity and men convicted of a penitentiary offense. Ministers, probate judges, county commissioners, registers of deeds, practicing physicians, postmasters, mail carriers, and anyone over 60 could not be compelled to serve⁷⁵. A juror qualified by residence, citizenship, elector status, age, and sound mind; land was not among the qualifications, for the regular panel or for a bystander summoned to fill out a short jury.

The jury list came from the tax rolls: two hundred names of qualified persons were selected from the last annual tax list and furnished to the clerk of the district court, to be kept full after each term⁷⁶. A man who paid no tax was in practice unlikely to be called, and the jury lists are worth reading as a second tax list.

Women became eligible in 1947, when the jury statute was amended to make them eligible for grand or trial juries on the same basis as men and subject to the same exemptions⁷⁷.

Because jurors had to have the qualifications of electors, the rules on who could vote reached the jury box. Native Americans who kept their tribal relations stood outside the electorate: the state constitution extended the vote only to persons of Indian descent who had severed their tribal relations, and the statutory disabilities were repealed by an act approved 27 February 1951, and the constitutional language was removed by amendment in 1958⁷⁸.

Criminal responsibility

All persons were capable of committing crimes except certain classes: children under 7; children of 7 but under 14, in the absence of proof that when they acted they knew the act was wrong; and persons of unsound mind on proof they could not know the wrongfulness of the act⁷⁹. So a child of 14 answered as an adult, a child between 7 and 14 only if the state proved the child knew the act was wrong, and a child under 7 not at all. The same rule stood in the code of 1939⁸⁰.

Witnesses

Any person could testify who understood the duty to tell the truth and could relate what had happened, whatever their age, sex, or race. The territorial Code of Civil Procedure listed the disqualifications, and neither age nor race was among them: no one was excluded for having an interest in the case, for being a party, or for being the husband or wife of a party. The exceptions ran on relationship instead. Neither husband nor wife could testify for or against the other without the other's consent, or as to anything said between them during the marriage, except in an action between the two of them or where one was charged with a crime against the other; and in a suit by or against executors, administrators, heirs, or next of kin, neither party could testify to a transaction with the person who had died unless the other side opened the subject⁸¹. The same scheme was still in place at the end of the period⁸². Competency, not age, was the test, so children did testify, with the judge satisfying himself first.

Sources & Where to Verify

Constitutions

South Dakota. Constitution of the State of South Dakota, 1948. Pierre: Secretary of State, 1948. The constitutional text as it stood at the end of the period covered here. Digital images. HathiTrust. https://catalog.hathitrust.org/Record/010471572 (accessed 5 August 2026).

South Dakota Constitution of 1889. Art. VII (electors, which governed who could sit on a jury); art. XXI, § 4 (homestead and personal-property exemptions); art. XXI, § 5 (a married woman's separate property). Current text with the amendment history printed under each section. South Dakota Legislature. https://sdlegislature.gov/Constitution (accessed 5 August 2026).

Territorial and State Codes

Price, Charles H., and E. W. Caldwell, comps. The Compiled Laws of the Territory of Dakota, A.D. 1887. Comprising the Codes and General Statutes in Force at the Conclusion of the Seventeenth Session of the Legislative Assembly. Bismarck: Printed for the Territory, 1887. The first re-compilation of the 1877 codes, and the volume in force when the territory was divided. Digital images. HathiTrust. https://catalog.hathitrust.org/Record/008595792 (accessed 5 August 2026).

The Revised Codes, 1903, State of South Dakota: Comprising the Political Code, Civil Code, Code of Civil Procedure, Probate Code, Justices Code, Penal Code and Code of Criminal Procedure. Compiled and revised by G. C. Moody, Bartlett Tripp, and James M. Brown. Pierre: Hipple Printing Co., 1904. The compilation between 1887 and 1919, and the last volume to carry the bar on a married woman serving as administratrix. Digital images. HathiTrust. https://catalog.hathitrust.org/Record/100671130 (accessed 5 August 2026).

The Revised Codes of the Territory of Dakota, A.D. 1877. Comprising the Codes and General Statutes Passed at the Twelfth Session of the Legislative Assembly, and All Other General Laws Remaining in Force. Published and edited by Geo. H. Hand, Secretary of Dakota. Yankton: Bowen & Kingsbury, Public Printers, 1877. The foundational volume for this guide: Civil Code (persons, marriage, parent and child, guardianship, husband and wife, property, wills, succession), Political Code (revenue, roads, homestead, jurors, towns), Probate Code (guardianship, executors and administrators), Code of Civil Procedure (witnesses and evidence), and Penal Code (capacity to commit crime). The preface, at pp. iii–vi, gives the territorial chain of government and each code's enactment history. Each division and a full topical index are posted as separate PDFs. Digital images. North Dakota Legislative Branch. https://ndlegis.gov/library-and-research/revised-codes-and-compiled-laws/1877 (accessed 11 August 2026).

South Dakota Code of 1939: Containing All the General Laws of South Dakota Which Were in Effect on January 1st, 1939, and the Rules of Practice and Procedure Promulgated by the Supreme Court. 4 vols. Pierre: State Publishing Company, 1939. Effective 1 July 1939; the code governing the last decade covered here, cited as SDC followed by the section number. The supplements to this code, issued through the 1950s, print a source and repeal note under each section, and are the fastest way to date an amendment or a repeal that falls after 1939. A separately published Index of South Dakota Code of 1939 (Rapid City: Johnston and Bordewyk, 1939) is digitized at HathiTrust, https://catalog.hathitrust.org/Record/102728701 (accessed 5 August 2026).

South Dakota Codified Laws (current). Each section is printed with a source line giving its full chain backward through the 1877, 1887, 1903, 1919, and 1939 volumes, and often naming the session act that changed it; where a rule survives into the modern code this is the quickest way to date a change. Titles recodified afresh in 1939, marriage among them, carry no pre-1939 derivation. South Dakota Legislature. https://sdlegislature.gov/Statutes (accessed 5 August 2026).

Haney, Dick, chief reviser, John B. Hanten and G. N. Williamson, assistant revisers. The South Dakota Revised Code, 1919. 2 vols. Pierre, S. Dak.: Hipple Printing Company, 1919. The compilation between 1903 and 1939, and the volume in which the bar on a married woman serving as administratrix disappears. Digital images. HathiTrust. https://catalog.hathitrust.org/Record/008595918 (accessed 5 August 2026).

Session Laws

Every Dakota Territory volume from 1862 to 1889 is posted in full by the North Dakota Legislative Branch, and the South Dakota state series is digitized into the 1920s at HathiTrust. Each session volume carries its own title page and its own imprint, and they differ from year to year, so take the imprint for any given year from that volume's own title page.

Laws, Memorials and Resolutions of the Territory of Dakota, Passed at the Fifth Session of the Legislative Assembly, Begun and Held at Yankton, the Capital of Said Territory, on the Fourth Day of December, A.D. 1865, and Concluded January 12th, A.D. 1866. Published by authority. Yankton, Dakota Territory: G. W. Kingsbury, Printer, Union & Dakotaian Office, 1866. Ch. 1, "An Act to Establish a Civil Code," pp. 1–376, approved 12 January 1866 — the original text of the code that governed until the revision of 1877, and the volume to read for any record made between those years. Digital images. North Dakota Legislative Branch. https://ndlegis.gov/assembly/1004-1865/regular/1865-66-territory-dakota-session-laws (accessed 11 August 2026).

Laws Passed at the Fourteenth Session of the Legislative Assembly of the Territory of Dakota, Begun and Held at Yankton, the Capital of Said Territory, on Tuesday the 11th Day of January, A.D. 1881, and Concluded March 7th, A.D. 1881. Yankton, D.T.: Bowen & Kingsbury, Public Printers, Press and Dakotaian Office, 1881. Ch. 2, the act repealing the separate examination of a married woman, printed with the certificates of its passage over the governor's veto. Digital images. North Dakota Legislative Branch. https://ndlegis.gov/assembly/1013-1881/regular/1881-territory-dakota-session-laws (accessed 11 August 2026).

Enabling Act and Constitution and the Laws Passed by the Thirteenth Session of the Legislature of the State of South Dakota. Official ed. Sioux Falls: Brown & Saenger, 1913. Ch. 266 (H.B. 204), pp. 405–06, the act barring marriage across the color line and repealing its 1909 predecessor. Digital images. Internet Archive. https://archive.org/details/sessionlaws00dakogoog (accessed 5 August 2026).

South Dakota session laws, 1891–1983. Each volume carries its own title page: the 1939 volume, for example, is The Laws Passed at the Twenty-Sixth Session of the Legislature of the State of South Dakota, official ed. (Pierre, S.D.: Hipple Printing Company, 1939). The run supplied the 1939, 1943, and 1951 acts cited here. Digital images. HathiTrust. https://catalog.hathitrust.org/Record/010139666 (accessed 5 August 2026).

United States. General Allotment Act of 8 February 1887, 24 Stat. 388, § 5 (the twenty-five-year trust patent; later 25 U.S.C. § 348). Digital images. Department of Defense. https://www.denix.osd.mil/na/denix-files/sites/42/2016/03/Dawes-Severalty-Act-of-1887.pdf (accessed 5 August 2026).

United States. Act of 3 March 1887, ch. 340, 24 Stat. 476, restricting the ownership of real estate in the territories to citizens and declarant aliens; in force in Dakota Territory from 1887 to statehood in 1889. Later codified at 48 U.S.C. §§ 1501–1507, where the amendments and exemptions are printed. Office of the Law Revision Counsel, U.S. House of Representatives. https://uscode.house.gov/view.xhtml?path=/prelim@title48/chapter11&edition=prelim (accessed 11 August 2026).

United States. Organic act of 2 March 1861 creating the Territory of Dakota. Printed as "The Organic Law" in the front matter of the Revised Codes of the Territory of Dakota, A.D. 1877.

United States. "An Act to divide a portion of the reservation of the Sioux Nation of Indians in Dakota into separate reservations and to secure the relinquishment of the Indian title to the remainder, and for other purposes." Act of 2 March 1889, 25 Stat. 888. Text. Indian Affairs: Laws and Treaties, Oklahoma State University. https://treaties.okstate.edu/treaties/agreement-with-the-sioux-1889-22333 (accessed 5 August 2026).

Court Cases

Agnew v. Agnew. 58 S.D. 164, 235 N.W. 644 (1931).

Bracken v. Bracken. 45 S.D. 430, 188 N.W. 46 (1922).

In re Estate of Duval. 2010 S.D. 2.

In re Ryan's Estate. 74 S.D. 359, 53 N.W.2d 11 (1952). Quotes the will-execution statute in full. https://law.justia.com/cases/south-dakota/supreme-court/1952/9259-1.html (accessed 5 August 2026).

Lessert v. Lessert. 64 S.D. 3, 263 N.W. 559 (1935).

State v. Burt. 17 S.D. 7, 94 N.W. 409 (1903).

Svendsen v. Svendsen. 37 S.D. 353, 158 N.W. 410 (1916).

Secondary and Reference Works

FamilySearch Research Wiki. "South Dakota Probate Records." Describes what South Dakota probate files contain and who holds them: territorial probate records with the State Archives, later records with the county courts. https://www.familysearch.org/en/wiki/South_Dakota_Probate_Records (accessed 5 August 2026).

Fisch, William B. "The Dakota Civil Code: Notes for an Uncelebrated Centennial." North Dakota Law Review 43 (1967): 485. On the Field Code origin of the Dakota codes and their descent into the modern South Dakota and North Dakota codes. https://commons.und.edu/cgi/viewcontent.cgi?article=2353&context=ndlr (accessed 5 August 2026).

"Interracial Marriage — South Dakota." Race Relations Law Reporter 2 (1957): 479. Prints the 1957 act repealing the marriage bar, with its bill number and approval date.

Library of Congress. South Dakota: Local History & Genealogy Resource Guide. https://guides.loc.gov/south-dakota-local-history-genealogy (accessed 5 August 2026).

Loving Day. "Legal Map." Quotes the text of the South Dakota marriage bar as it stood in the code of 1939, section by section. https://lovingday.org/legal-map/ (accessed 5 August 2026).

Martyn, Byron Curti. Racism in the United States: A History of the Anti-Miscegenation Legislation and Litigation. 1979. Cites the 1957 South Dakota repealing act by chapter, at p. 1558.

"Miscegenation Statutes." North Dakota Law Review 25 (1949): 285. A note listing the miscegenation statutes then in force state by state, South Dakota among them. https://commons.und.edu/cgi/viewcontent.cgi?article=3657&context=ndlr (accessed 5 August 2026).

South Dakota. Office of Attorney General. Biennial Report of the Attorney General of the State of South Dakota. 1939. Dates the gross income tax to ch. 184 of the Laws of 1933 and its expiry to 30 June 1935, at p. 676.

South Dakota Legislative Research Council. "When did Native Americans in South Dakota become 'qualified electors'?" 2017. Confirms that the statutes barring Indians from voting remained codified until 1951. https://mylrc.sdlegislature.gov/api/Documents/Attachment/121890.pdf?Year=2017 (accessed 5 August 2026).

South Dakota State Historical Society, State Archives. Finding aids describing the county probate, guardianship, marriage, register-of-deeds, and tax records held by the Archives, series by series. https://sdarchives.lyrasistechnology.org/ (accessed 5 August 2026).

U.S. Commission on Civil Rights, South Dakota Advisory Committee. Voting Rights and Access in South Dakota. 2023. Dates the 1951 repeal of the disabilities on Indians maintaining tribal relations. https://www.usccr.gov/files/2023-07/south-dakota-advisory-committee-report_voting-rights.pdf (accessed 5 August 2026).

U.S. Women's Bureau. The Legal Status of Women in the United States of America, January 1, 1948: Report for South Dakota. Bulletin of the Women's Bureau, no. 157-40 (rev.). Washington: Government Printing Office, 1949. A digest of South Dakota law on majority, minors' contracts, married women's property, homestead conveyance, intestate shares, wills, guardianship, marriage, common-law marriage, fiduciary capacities, spousal testimony, and jury service, each with its South Dakota Code of 1939 section. Digital images. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/files/docs/publications/women/b0157-40-rev_dolwb_1949.pdf (accessed 5 August 2026).

Citations

1. Revised Codes of Dakota, 1877, “Preface,” pp. iii–iv: the territory was part of the Louisiana Purchase; it lay at different times within Michigan and Wisconsin Territories; Minnesota Territory embraced the portion of Dakota east of the Missouri river and Nebraska Territory from 1854 to 1861 the portion west of it; the admission of Minnesota as a state in May 1858 left the country between unorganized; the first cession of land within Dakota was made in 1858 by treaty with the Yankton; white settlement began in 1859; and the act of Congress organizing the territory passed 2 March 1861. The act is printed as “The Organic Law” in the front matter of the same volume; digital images, North Dakota Legislative Branch (https://ndlegis.gov/library-and-research/revised-codes-and-compiled-laws/1877 : accessed 11 August 2026) ↩
2. Revised Codes of Dakota, 1877, “Preface,” pp. iv–v: the Civil Code began in the unfinished work of a New York commission, was never enacted there, and first took the form of a statute in Dakota Territory; it was taken up by a California commission in 1872, enacted in California in 1873, and revised, enlarged, and re-enacted in Dakota in 1877. The act itself is Laws, Memorials and Resolutions of the Territory of Dakota, Passed at the Fifth Session of the Legislative Assembly (Yankton: G. W. Kingsbury, Printer, Union & Dakotaian Office, 1866), ch. 1, “An Act to Establish a Civil Code,” pp. 1–376, approved 12 January 1866; digital images, North Dakota Legislative Branch (https://ndlegis.gov/assembly/1004-1865/regular/1865-66-territory-dakota-session-laws : accessed 11 August 2026). See also William B. Fisch, “The Dakota Civil Code: Notes for an Uncelebrated Centennial,” North Dakota Law Review 43 (1967): 485; digital images, University of North Dakota (https://commons.und.edu/cgi/viewcontent.cgi?article=2353&context=ndlr : accessed 5 August 2026) ↩ ↩
3. Revised Codes of Dakota, 1877, “Preface,” pp. iv–vi: the first legislative assembly convened in March 1862 and passed a body of laws including a civil code; eleven later sessions amended, repealed, and re-enacted them; the code of civil procedure enacted at the first session was repealed by implication in 1868 and expressly in 1873; and the revising commission was created by an act of the eleventh session approved 14 January 1875 ↩
4. Revised Codes of Dakota, 1877, Civil Code, § 82, “Joint tenants — wife’s conveyance,” which in one section allows husband and wife to hold as joint tenants or tenants in common, lets the wife convey her separate property without her husband’s consent, and provides for the inventory of her separate personal property to be signed, acknowledged, and recorded with the register of deeds as notice and evidence of her title; and § 83, subds. 1–4, “Separate and mutual rights”; digital images, North Dakota Legislative Branch (https://ndlegis.gov/library-and-research/revised-codes-and-compiled-laws/1877 : accessed 11 August 2026). Carried to S.D. Code of 1939, §§ 14.0202, 14.0204, 14.0206, digested in Legal Status of Women: South Dakota, nos. 4–9; and see S.D. Const. of 1889, art. XXI, § 5, “Rights of married women”; South Dakota Legislature (https://sdlegislature.gov/Constitution : accessed 5 August 2026) ↩ ↩ ↩
5. Civil Code of 1866, § 647, “Dower and curtesy are abolished”; digital images, North Dakota Legislative Branch (https://ndlegis.gov/assembly/1004-1865/regular/1865-66-territory-dakota-session-laws : accessed 11 August 2026). Carried into Revised Codes of Dakota, 1877, Civil Code, § 83, subd. 5 (no estate to the husband as tenant by curtesy, and no dower to the wife), and § 779, “Abolished”; still so stated a lifetime later, U.S. Women’s Bureau, The Legal Status of Women in the United States of America, January 1, 1948: Report for South Dakota, Bulletin of the Women’s Bureau, no. 157-40 (rev.) (Washington: Government Printing Office, 1949), no. 15, citing South Dakota Code of 1939, §§ 14.0206, 56.0103; digital images, FRASER, Federal Reserve Bank of St. Louis (https://fraser.stlouisfed.org/files/docs/publications/women/b0157-40-rev_dolwb_1949.pdf : accessed 5 August 2026) ↩ ↩
6. Revised Codes of Dakota, 1877, Probate Code, throughout, the court being “the probate court of the county”; by the end of the period the business belonged to the county court, Legal Status of Women: South Dakota, no. 16, citing S.D. Code of 1939, § 35.1303 ↩
7. Civil Code of 1866, §§ 10–11, “A minor is a person under the age of twenty-one years” and “All other persons are adults” ↩
8. Revised Codes of Dakota, 1877, Civil Code, §§ 10–11, “Minority defined” and “Adults” ↩
9. S.D. Code of 1939, § 43.0101; digested in Legal Status of Women: South Dakota, no. 1. The ages were equalized at 18 for both sexes in 1972, after the period covered here ↩
10. Revised Codes of Dakota, 1877, Civil Code, § 170, “Who may convey”: “Any person, whether citizen or alien, may take, hold and dispose of property, real or personal, within this territory”; the same rule and the same section number in Civil Code of 1866, § 170. Neither text sets any qualification of age, sex, or race. And see Revised Codes of Dakota, 1877, Civil Code, § 159, “Ownership defined,” the right of one or more persons to possess and use a thing to the exclusion of others ↩ ↩ ↩ ↩
11. Civil Code of 1866, § 15 (“A minor cannot give a delegation of power”), § 16 (a minor may make a conveyance or other contract in the same manner as any other person, subject only to his power of disaffirmance), § 17 (disaffirmance on restoring the consideration, before majority or within a reasonable time afterwards), and § 18 (no disaffirmance of a contract for necessaries) ↩
12. Revised Codes of Dakota, 1877, Civil Code, § 15, “Minors’ disability”: a minor cannot give a delegation of power, nor, under the age of eighteen, make a contract relating to real property or to any personal property not in his immediate possession or control; S.D. Code of 1939, § 43.0103, digested in Legal Status of Women: South Dakota, no. 2 ↩ ↩
13. Revised Codes of Dakota, 1877, Civil Code, §§ 16–17, “Powers — conditional” and “Minors’ contracts”; S.D. Code of 1939, §§ 43.0104–43.0105 ↩
14. Revised Codes of Dakota, 1877, Civil Code, § 18, “Necessaries of minor”; S.D. Code of 1939, § 43.0106 ↩
15. Revised Codes of Dakota, 1877, Civil Code, § 123, “Power”: no person, whether a parent or otherwise, has any power as guardian of property except by appointment; S.D. Code of 1939, §§ 14.0318, 14.0504, digested in Legal Status of Women: South Dakota, no. 25 ↩ ↩
16. Civil Code of 1866, § 36: any unmarried male of 14 or upwards and any unmarried female of 13 or upwards, not otherwise disqualified, capable of consenting to marriage, subject to § 54 ↩
17. Revised Codes of Dakota, 1877, Civil Code, § 36, “Lawful age”: any unmarried male of 18 or upwards and any unmarried female of 15 or upwards ↩
18. S.D. Code of 1939, § 14.0109; digested in Legal Status of Women: South Dakota, no. 18 ↩
19. Civil Code of 1866, § 54, subds. 1 and 3: subdivision 1 makes it a ground of annulment that the party seeking it was under the age of legal consent, unless after attaining that age the party freely cohabited with the other, and says nothing of a parent’s consent; subdivision 3 adds the narrower ground that the wife was under 14, that the marriage was without the consent of the person having legal charge of her and was a punishable offense on the part of the husband, and that it had not been followed by cohabitation or ratified since she attained 14. The authentication article, §§ 45–53, requires solemnization before an authorized person and at least one witness and provides for the celebrant’s certificate and its filing, and nowhere mentions a license or the consent of a parent ↩
20. Revised Codes of Dakota, 1877, Civil Code, § 54, “Causes for annulling marriage,” subd. 1 (party under the age of legal consent and married without the consent of a parent, guardian, or person having charge of the party, unless that party freely cohabited with the other after reaching the age of consent) and closing paragraph (misdemeanor for a minister or magistrate who knowingly solemnizes such a marriage); the same grounds ran to the end of the period, S.D. Code of 1939, § 14.0601, digested in Legal Status of Women: South Dakota, no. 22 ↩
21. Laws of South Dakota, 1890, ch. 109, §§ 1–3, the act that introduced the marriage license: a license must be obtained from the clerk of the circuit court before any marriage in the state; it must not be granted where either party is under the age that makes a marriage valid, nor where either party is a minor without the previous consent of the parent or guardian; and where the clerk does not know the parties’ ages he must take the testimony of competent and disinterested witnesses. Cited from the derivations printed beside The Revised Codes, 1903, State of South Dakota (Pierre: Hipple Printing Co., 1904), Civil Code, §§ 46–48, which read “s. 1, c. 109, 1890,” “s. 2, c. 109, 1890,” and “s. 3, c. 109, 1890”; digital images, HathiTrust (https://catalog.hathitrust.org/Record/100671130 : accessed 5 August 2026). The Supreme Court described the same act as the one that brought licensing into the marriage law, Reports of Cases Decided in the Supreme Court of the State of South Dakota, vol. 38 (1917), 373. Carried to S.D. Code of 1939, §§ 14.0112–14.0113, digested in Legal Status of Women: South Dakota, no. 18 ↩
22. Lessert v. Lessert, 64 S.D. 3, 5 (1935), 263 N.W. 559 ↩
23. Civil Code of 1866, § 34: marriage is a personal relation arising out of a civil contract, “to which the consent of parties capable of making it is alone necessary”; and § 45, placing solemnization in the article on authentication, “For the purpose of authentication, according to the provisions of this article, a marriage must be solemnized” ↩
24. Revised Codes of Dakota, 1877, Civil Code, § 34, “Marriage contract defined”: consent alone will not constitute marriage; it must be followed by a solemnization or by a mutual assumption of marital rights, duties, or obligations. And see § 35, “Proof of,” allowing consent and consummation to be shown in any form and proved by the ordinary rules of evidence ↩
25. Svendsen v. Svendsen, 37 S.D. 353, 368 (1916), 158 N.W. 410; Bracken v. Bracken, 45 S.D. 430, 433 (1922), 188 N.W. 46; Agnew v. Agnew, 58 S.D. 164, 171 (1931), 235 N.W. 644; requisites collected at Legal Status of Women: South Dakota, no. 19, which notes that the claim of a common-law marriage failed in all three ↩
26. S.D. Code of 1939, § 14.0110, as amended by the Session Laws of 1959, ch. 50, § 2, now S.D. Codified Laws 25-1-29; South Dakota Legislature (https://sdlegislature.gov/Statutes : accessed 5 August 2026), which preserves any marriage consented to and consummated before 1 July 1959 ↩
27. Revised Codes of Dakota, 1877, Civil Code, § 45, “Solemnization” (solemnization, authentication, and recording required, but non-compliance does not invalidate a lawful marriage), and § 46, which for the first time allows parties married without solemnization to make a written declaration of marriage, to be acknowledged and recorded like a grant of real property; with the certificate and its filing within six months at §§ 49–50. The corresponding article of the Civil Code of 1866, §§ 45–53, provides only for solemnization, the celebrant’s certificate, its registry, and its use as evidence, and contains no declaration of marriage ↩
28. Revised Codes of Dakota, 1877, Civil Code, § 44, final unnumbered paragraph; S.D. Code of 1939, § 14.0103, digested in Legal Status of Women: South Dakota, no. 21, now S.D. Codified Laws 25-1-38; applied in In re Estate of Duval, 2010 S.D. 2 ↩
29. Revised Codes of Dakota, 1877, Civil Code, § 38, “Incestuous marriages” ↩
30. Revised Codes of Dakota, 1877, Civil Code, § 39, “Voidable marriages,” whose closing sentence declares a marriage of a step-father with a step-daughter, or of a step-mother with a step-son, illegal and void ↩
31. Revised Codes of Dakota, 1877, Civil Code, § 40, “Illegal marriage” ↩
32. Enabling Act and Constitution and the Laws Passed by the Thirteenth Session of the Legislature of the State of South Dakota, official ed. (Sioux Falls: Brown & Saenger, 1913), ch. 266 (H.B. 204), pp. 405–06, approved 14 March 1913, “An Act Prohibiting the Inter-Marriage and Illicit Cohabitation of Persons Belonging to the Caucasian Race, With Persons Belonging to the African, Corean, Malayan, or Mongolian Race”; § 1 (felony; fine to $1,000, prison to ten years, or both), § 2 (license and solemnization; misdemeanor), § 3 (marriage void from the beginning), and title, giving the law it replaced as ch. 196 of the Session Laws of 1909; digital images, Internet Archive (https://archive.org/details/sessionlaws00dakogoog : accessed 5 August 2026). The statute spelled the third race “Corean”; the code of 1939 modernized it to “Korean,” S.D. Code of 1939, § 14.0106(4), “Marriages null and void from the beginning,” with the penalty at § 14.9901, the text of both quoted in Loving Day, “Legal Map” (https://lovingday.org/legal-map/ : accessed 5 August 2026), and § 14.0106 listed as then in force in “Miscegenation Statutes,” North Dakota Law Review 25 (1949): 285. Subdivision (4), with the penalty section § 14.9901, was repealed by the Session Laws of 1957, ch. 38 (S.B. 4 of the Thirty-Fifth Legislature), approved 5 February 1957, “An Act to repeal subsection (4) of section 14.0106, and section 14.9901, of the South Dakota Code of 1939, relating to mixed race marriages”; the act is reproduced in Race Relations Law Reporter 2 (1957): 479, and cited by Byron Curti Martyn, Racism in the United States: A History of the Anti-Miscegenation Legislation and Litigation (1979), 1558 ↩
33. Revised Codes of Dakota, 1877, Civil Code, § 42, “Indian marriage”; and see § 45, allowing solemnization in the case of Indians by the peacemakers or their agents. The same rule appears at Civil Code of 1866, § 42 ↩
34. Revised Codes of Dakota, 1877, Civil Code, § 794, “Alienage no disability”: aliens may take in all cases by succession as well as citizens, and no person capable of succeeding is precluded by reason of the alienage of any relative; carried to S.D. Codified Laws 29A-2-111 ↩
35. United States, act of 3 March 1887, ch. 340, 24 Stat. 476, restricting the ownership of real estate in the territories to citizens and to those who had lawfully declared their intention to become citizens; by § 7, added by the act of 2 March 1897, ch. 363, 29 Stat. 619, the restriction did not reach land owned by aliens on or before 3 March 1887 so long as it was held by the then owners or their heirs, nor any alien who became a bona fide resident of the United States. Later codified at 48 U.S.C. §§ 1501–1507; Office of the Law Revision Counsel, U.S. House of Representatives (https://uscode.house.gov/view.xhtml?path=/prelim@title48/chapter11&edition=prelim : accessed 11 August 2026). The act applied in Dakota Territory from 1887 until statehood in 1889 ↩
36. Revised Codes of Dakota, 1877, Civil Code, § 660, “Married woman” (acknowledgment not to be taken unless she is made acquainted with the contents on an examination without the hearing of her husband, nor certified unless she then says she executed the instrument freely and does not wish to retract), and § 661, “Same” (her conveyance has the same effect as if she were unmarried, “except as mentioned in the last section,” but has no validity until so acknowledged) ↩
37. Laws Passed at the Fourteenth Session of the Legislative Assembly of the Territory of Dakota (Yankton, D.T.: Bowen & Kingsbury, Public Printers, Press and Dakotaian Office, 1881), ch. 2, “An Act Relating to Sections 625, 626, 660, 661 and 666 of the Civil Code of the Territory of Dakota, Approved February 16th, 1877”: § 1 repeals §§ 625, 626 and 660; § 2 amends § 661 to read that a conveyance or other instrument executed by a married woman has the same effect as if she were unmarried and may be acknowledged in the same manner; § 3 repeals subdivision 3 of § 666, the printed form of acknowledgment for married women. The certificates printed with the act show that Governor N. G. Ordway returned the bill without his approval on 14 February 1881, that the council repassed it over his objections on 15 February, and that the house did so on 17 February. Digital images, North Dakota Legislative Branch (https://ndlegis.gov/assembly/1013-1881/regular/1881-territory-dakota-session-laws : accessed 11 August 2026) ↩
38. S.D. Code of 1939, § 51.1624, digested in Legal Status of Women: South Dakota, no. 5; the chain runs from the act of 1881 through the Compiled Laws (1887), § 3282, the Revised Civil Code (1903), § 975, and the Revised Code (1919), § 581, and is printed in the source line under S.D. Codified Laws 43-28-9 ↩
39. Revised Codes of Dakota, 1877, Political Code, ch. 38, § 3, “Conveyance of, limited”: a conveyance or incumbrance by the owner of a homestead is of no validity unless the husband and wife, if the owner is married and both are residents of the territory, concur in and sign the same joint instrument ↩
40. S.D. Code of 1939, § 51.1703; digested in Legal Status of Women: South Dakota, no. 3 ↩
41. S.D. Code of 1939, § 51.1704; digested in Legal Status of Women: South Dakota, no. 3 ↩
42. Revised Codes of Dakota, 1877, Probate Code, § 350 (the guardian may sell the real estate on obtaining an order of the probate court), § 363, “Petition for sale” (verified petition setting out the condition of the estate and the facts showing the necessity or expediency of a sale), and § 364, “Hearing and order” ↩
43. Revised Codes of Dakota, 1877, Civil Code, § 623, “Seal abolished — proof” (a grant not duly acknowledged must be proved by a subscribing witness to be entitled to record), with the acknowledgment article at §§ 655–659 and the modes of proof at § 662, none of which sets any age for a subscribing witness; carried through the Compiled Laws (1887), § 3246, the Revised Civil Code (1903), § 939, and the Revised Code (1919), § 541, to S.D. Code of 1939, § 51.1402, and now S.D. Codified Laws 43-25-26, where the chain is printed in the source line ↩
44. United States, General Allotment Act of 8 February 1887, 24 Stat. 388, § 5, later 25 U.S.C. § 348; digital images, U.S. Department of Defense (https://www.denix.osd.mil/na/denix-files/sites/42/2016/03/Dawes-Severalty-Act-of-1887.pdf : accessed 5 August 2026) ↩
45. United States, “An Act to divide a portion of the reservation of the Sioux Nation of Indians in Dakota into separate reservations and to secure the relinquishment of the Indian title to the remainder, and for other purposes,” act of 2 March 1889, 25 Stat. 888; text, Indian Affairs: Laws and Treaties, Oklahoma State University (https://treaties.okstate.edu/treaties/agreement-with-the-sioux-1889-22333 : accessed 5 August 2026) ↩
46. Civil Code of 1866, § 637, “Succession defined,” and § 638, under which the property, both real and personal, of one who dies without a will passes in the first instance to the personal representatives as trustees, to make the family provision directed by § 640, to pay debts, and to distribute the remainder among those entitled to succeed ↩
47. Revised Codes of Dakota, 1877, Civil Code, §§ 776–777, defining succession and providing that the property, both real and personal, of one who dies without a will passes to the heirs, subject to the control of the probate court and to the possession of any administrator ↩
48. Civil Code of 1866, § 642, “Order of succession,” subds. 1–5, and § 643, “Where there is neither widow nor children.” Subdivision 1 gives a surviving husband the whole surplus, notwithstanding that it was the separate property of the wife, unless she had alienated it during the marriage or disposed of it on her decease by will or by gift in view of death; subdivision 2 gives a surviving wife one-third and the lineal descendants two-thirds; subdivision 3 sets the ten-thousand and twenty-thousand dollar steps where there are no descendants; subdivision 4 gives her the whole where there is no descendant, parent, brother, or sister; and subdivision 5 gives the whole to the nearest lineal descendants where there is no surviving spouse. And see § 644, under which the successors of a deceased parent cannot take by representation in place of the parent, and § 646, under which real property vesting in several persons is held in common ↩
49. Revised Codes of Dakota, 1877, Civil Code, § 778, “Order of, to property not willed,” subds. 1–5, including the right of representation by which the children of a child who died first take the share their parent would have taken ↩
50. S.D. Code of 1939, § 56.0104; digested in Legal Status of Women: South Dakota, no. 15 ↩
51. Revised Codes of Dakota, 1877, Civil Code, § 780, “Inheritance by illegitimate child” ↩
52. Revised Codes of Dakota, 1877, Civil Code, § 781; S.D. Code of 1939, § 56.0106, digested in Legal Status of Women: South Dakota, no. 29 ↩
53. Revised Codes of Dakota, 1877, Civil Code, § 87 ↩
54. Revised Codes of Dakota, 1877, Civil Code, § 116, “Illegitimate child”: the father, by publicly acknowledging it as his own, receiving it as such with the consent of his wife if he is married into his family, and otherwise treating it as if it were legitimate, thereby adopts it, and the child is deemed for all purposes legitimate from the time of its birth ↩
55. Revised Codes of Dakota, 1877, Civil Code, §§ 117, 120, defining a guardian and a general guardian; S.D. Code of 1939, § 14.0501, digested in Legal Status of Women: South Dakota, no. 25 ↩
56. Revised Codes of Dakota, 1877, Civil Code, § 122; S.D. Code of 1939, § 14.0502, digested in Legal Status of Women: South Dakota, no. 26, under which the father of a legitimate child appointed with the mother’s written consent, either parent appointed alone if the other was dead or incapable of consenting, and the mother of an illegitimate child appointed by deed or will ↩
57. Revised Codes of Dakota, 1877, Probate Code, § 337, “Father or mother entitled”; and see Civil Code, § 127, “Rules governing selection.” The later rule at S.D. Code of 1939, §§ 14.0505–14.0506, digested in Legal Status of Women: South Dakota, no. 25 ↩
58. Revised Codes of Dakota, 1877, Probate Code, § 334, “When minor may nominate,” § 335, “When judge may appoint,” and § 336, “Minor may appoint” ↩
59. Revised Codes of Dakota, 1877, Probate Code, § 339: every guardian appointed shall have the custody and care of the education of the minor and the care and management of his estate “until such minor arrives at the age of majority, or marries, or until the guardian is legally discharged” ↩
60. Revised Codes of Dakota, 1877, Civil Code, § 683, “Who may make — other property”: every person over the age of eighteen years, of sound mind, may by last will dispose of all his estate, real and personal ↩
61. Revised Codes of Dakota, 1877, Civil Code, § 684, “Married woman — equal right” ↩
62. S.D. Code of 1939, § 56.0202; digested in Legal Status of Women: South Dakota, no. 14, which adds that the power is subject to a survivor’s right of occupancy of the homestead ↩
63. Revised Codes of Dakota, 1877, Civil Code, § 691, “Execution of wills — olographic”; § 688, “Nuncupative will,” requiring that the estate not exceed $1,000, that the will be proved by two witnesses present at the making, one of whom the testator asked to bear witness, and that the decedent was in actual military service in the field or doing duty on shipboard at sea in contemplation, fear, or peril of death, or in expectation of immediate death from an injury received the same day; and § 692, “Not in writing.” The same scheme was in force in 1948, S.D. Code of 1939, § 56.0210, quoted in full in In re Ryan’s Estate, 74 S.D. 359, 53 N.W.2d 11 (1952) (https://law.justia.com/cases/south-dakota/supreme-court/1952/9259-1.html : accessed 5 August 2026) ↩
64. Revised Codes of Dakota, 1877, Civil Code, § 693, “Method of witnessing will” ↩
65. Revised Codes of Dakota, 1877, Civil Code, § 717, “Gift to a witness void,” and § 718, “Not if entitled — competency”; neither section sets any age for a witness ↩
66. Revised Codes of Dakota, 1877, Probate Code, § 46, “Incompetency defined” (executors), and § 60, “Incompetency defined” (administrators), the first disqualification in each being that the person is under the age of majority; S.D. Code of 1939, §§ 35.0402, 35.0503, digested in Legal Status of Women: South Dakota, no. 2 ↩
67. Revised Codes of Dakota, 1877, Probate Code, § 56, “Who entitled — order”; S.D. Code of 1939, § 35.0501, digested in Legal Status of Women: South Dakota, no. 5 ↩
68. Revised Codes of Dakota, 1877, Probate Code, § 57, “Preferences required”: of several persons claiming and equally entitled to administer, males must be preferred to females and relatives of the whole blood to those of the half blood; S.D. Code of 1939, § 35.0501(10) ↩
69. Revised Codes of Dakota, 1877, Probate Code, § 61, “Women”: “A married woman must not be appointed administratrix. When an unmarried woman, appointed administratrix, marries, her authority is extinguished.” Still in the same words at Revised Codes of 1903, Probate Code, § 85. The provision has no counterpart in the South Dakota Revised Code, 1919. The later rule at S.D. Code of 1939, §§ 35.0404 (executrix), 35.0504 (administratrix), digested in Legal Status of Women: South Dakota, no. 5 ↩
70. Revised Codes of Dakota, 1877, Political Code, ch. 29, § 66, “Road poll tax”: every male person between the ages of twenty-one and fifty years subject to a poll tax of one dollar and fifty cents, payable in money or by one day’s labor each year on the public highway within his road district ↩
71. Revised Codes of Dakota, 1877, Political Code, ch. 28, § 33, “Territorial, county and special taxes limited” ↩
72. Revised Codes of Dakota, 1877, Political Code, ch. 29, § 65, “Supervisor’s duties” (the supervisor to make out a list of all males between 21 and 50 in the district on or before 1 March each year, and to enroll later arrivals), and § 67, “Supervisors order work done” ↩
73. Revised Codes of Dakota, 1877, Political Code, ch. 24, § 22, “Powers of board of trustees,” subd. 16: to levy and collect annual taxes not exceeding fifty cents on the hundred dollars valuation, and a twenty-five cent poll tax ↩
74. Retail sales tax: Session Laws of 1935, ch. 205, § 34, amended 1937, ch. 253, § 1, and carried into S.D. Code of 1939, § 57.3201, now S.D. Codified Laws 10-45-2; South Dakota Legislature (https://sdlegislature.gov/Statutes : accessed 5 August 2026). Income tax: the net income tax stood at S.D. Code of 1939, § 57.2801, as amended by the Laws of 1941, ch. 344, and was repealed by Laws Passed at the Twenty-Eighth Session of the Legislature of the State of South Dakota, 1943, ch. 295 (S.B. 41), p. 296, “Repealing Net Income Tax”; digital images, HathiTrust (https://catalog.hathitrust.org/Record/010139666 : accessed 5 August 2026). The gross income tax was imposed by the Laws of 1933, ch. 184, signed 4 March 1933, and expired by limitation on 30 June 1935: Biennial Report of the Attorney General of the State of South Dakota (1939), 676; and see Internal Revenue Cumulative Bulletin 14 (1935): 62. For the two taxes and their politics see Matthew Cecil, “Democratic Party Politics and the South Dakota Income Tax, 1933–1942,” South Dakota History 26 (Summer/Fall 1996) ↩
75. Revised Codes of Dakota, 1877, Political Code, ch. 19, § 1, “Qualification of jurors” ↩
76. Revised Codes of Dakota, 1877, Political Code, ch. 19, § 2, “Two hundred names from last tax list” ↩
77. S.D. Code of 1939, § 32.1001, as amended by the Session Laws of 1947, p. 198; digested in Legal Status of Women: South Dakota, no. 32 ↩
78. S.D. Const. of 1889, art. VII. The statutory disability was removed by Laws Passed at the Thirty-Second Session of the Legislature of the State of South Dakota, 1951, ch. 471 (H.B. 220), p. 432, “Repealing Law Relating to Certain Disabilities of Indians” — an act to repeal § 65.0801 of the South Dakota Code of 1939, relating to rights and disabilities of Indians — approved 27 February 1951; digital images, HathiTrust (https://catalog.hathitrust.org/Record/010139666 : accessed 5 August 2026). The constitutional language was removed by amendment in 1958. For the wider history see South Dakota Legislative Research Council, “When did Native Americans in South Dakota become ‘qualified electors’?” (2017) (https://mylrc.sdlegislature.gov/api/Documents/Attachment/121890.pdf?Year=2017 : accessed 5 August 2026), and Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976 (D.S.D. 2004) ↩
79. Revised Codes of Dakota, 1877, Penal Code, § 10, “Who capable of crimes” ↩
80. S.D. Code of 1939, § 13.0201, now S.D. Codified Laws 22-3-1. The lower age was raised from 7 to 10 in 1968, after the period covered here ↩
81. Revised Codes of Dakota, 1877, Code of Civil Procedure, § 446, “Not excluded except — husband and wife — decedent’s statement”: no person offered as a witness is excluded or excused by reason of interest in the event, by being a party, or by being the husband or wife of a party, except that neither spouse may be examined for or against the other without consent, nor as to communications made during the marriage, and except that in actions by or against executors, administrators, heirs at law, or next of kin neither party may testify as to a transaction with or statement by the decedent unless called to do so by the opposite party. The section names no disqualification of age or race ↩
82. S.D. Code of 1939, § 36.0101, digested in Legal Status of Women: South Dakota, no. 13; and see State v. Burt, 17 S.D. 7 (1903), 94 N.W. 409 ↩

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