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DAKOTA TERRITORY

The Dakota Territory was created by an Act of Congress on March 2, 1861. Boundaries of the Dakota Territory changed on a number of occasions. Originally, the territory comprised an area that included the present states of North Dakota, South Dakota, and much of Montana and Wyoming. From 1863 to 1864, the area of the territory was limited to the present day Dakotas. The territory included most of the present state of Wyoming and the Dakotas from 1864 to 1868. And from 1868 to 1889 the territory comprised the present states of North Dakota and South Dakota. The territorial capital was established in Yankton in 1861 and later removed to Bismarck in 1883.

The Organic Law that created Dakota Territory provided the framework for the structure and administration of the territory. Conforming generally to the structure of state government, the Organic Law called for a Governor to administer the territory. The Governor was appointed by the President of the United States, served a four-year term, was commander-in-chief of the militia, was superintendent of Indian affairs until 1871, had the power to appoint and commission territorial officials, and could veto bills passed by the Territorial Legislature. In addition, the Governor and the Territorial Secretary had the authority to set taxes for the territory. The Governor, Territorial Secretary, and the Chief Justice of the Supreme Court had the responsibility of canvassing elections and declaring winners of elective contests. The Governor served on various boards and commissions, including the Territorial Board of Education (1864-1887); Board of Equalization (1865-1889); Board of Trustees of Public Property (1887-1889); and the Board of Regents of the Agricultural College in Brookings (1883-1889).

The office of the Territorial Secretary, also provided in the Organic Law, was appointed by the President of the United States to serve a four-year term. The Secretary had responsibility for maintaining all territorial legislative records and acts of the Governor; served as acting Governor in the event of a vacancy; reported to the President and Congress on territorial affairs; maintained the territorial library; had authority for canvassing elections; maintained registrations of corporations operating in the territory; and served on the Board of Trustees of Public Property (1887-1889).

The Territorial Legislature was bicameral. The upper house or Council ranged in size from nine to twenty-four members. The House of Representatives ranged in size from thirteen to forty-eight members. All legislators were elected for two-year terms. The Territorial Legislature met annually from 1862 to 1868 and biennially until statehood in 1889. The Territorial Legislature had the power to override the Governor's veto by a two-thirds vote of both houses.

The judiciary created by the Organic Law consisted of a three-member Supreme Court appointed by the President of the United States to serve four-year terms. The Organic Law also provided for district courts, each presided over by a Territorial Supreme Court justice. The Supreme Court had jurisdiction over cases under both federal and territorial law. Decisions of the Territorial Supreme Court could be appealed to the United States Supreme Court. A fourth associate justice was added to the Supreme Court and an additional district court was created in 1875. The lower court system consisted of probate courts and justices of the peace.

The Organic Law also provided for a Territorial Delegate to be elected by the voters of the territory and seated as a non-voting member of the United State House of Representatives. The office of the Territorial Delegate was much coveted as a result of the power wielded both in Washington and in the territory.

The Dakota Territory was a creature of Congress, as were other United States territories established under provision of the Ordinance of 1787. The actual affairs of the territory were handled by the Department of State until administration of territories was transferred to the Department of the Interior in 1873.

The Enabling Act creating the states of North Dakota and South Dakota required the equitable division of territorial property between the two states. A 14 member Joint Committee for the Division of Property was established in July, 1889, consisting of seven members from each state's constitutional convention. Meeting in Bismarck, the Commission adopted a formula to divide the records of the government of Dakota Territory. It was decided that records of value to both states should be transcribed, other records should be distributed by locality (such as court cases and records of institutions), and the remaining records should be divided into two groups "of equal importance and value." Drawing lots then determined which state would receive which group of records. By this method, North Dakota acquired the records of the Territorial Governors and Secretaries and South Dakota acquired records of all other offices. The majority of the records, however, remained in Bismarck.

Division of Records between North and South Dakota (from Journal of the Joint Commission and Journal of the Constitutional Convention)

The problem of the division of the records of the Territory of Dakota between the proposed new states of North Dakota and South Dakota to be made by the Joint Commission was finally arrived by the drawing of lots.

On July 16, 1889, the Joint Committee consisting of members of the North Dakota Constitutional Convention and the South Dakota Constitutional Convention met in the Executive Office in the Capitol building at Bismarck, North Dakota. The Commission had been appointed by the Constitutional Conventions of the two sections of the Territory of Dakota, in compliance with section six of the Act passed by the U.S. Congress providing for the division of the Territory into the two states of North Dakota and South Dakota and their admission, together with the territories of Montana and Washington into the Union.

The Commission was to be composed of not less than three members of each convention. Its duty was to assemble at Bismarck, the territorial capital, to agree upon an equitable division of all property belonging to the Territory of Dakota, the disposition of all public records, and the amount of debts and liabilities of the Territory which were to be assumed and paid by each of the proposed states.

The Commission which met on the sixteenth of July had fourteen members; the chairman of the seven northern members was E. W. Camp of Stutsman County and the chairman of the seven southern members was A. G. Kellam of Brule County. Mr. Kellam was elected temporary chairman. The Commission then proceeded to form a permanent organization with the chairman of each commission presiding on alternate days. Each state commission elected its own secretary. Each motion had to have a majority of each commission for passage.

It did not take long to find out that in so far as the division of the archives was concerned there were almost as many differences of opinion as there were members. The first issue which was discussed the first day of deliberations was an interpretation of the powers of the commission under the enabling act. Several of the members thought there was a conflict between sections five and six of the act. Section five stated in part: “…but the archives, records and books of the Territory of Dakota shall remain at Bismarck, the Capital of North Dakota, until an agreement in reference thereto is reached by said states.” Section six stated that the duty of the Commission was to agree on “…the disposition of public records.” Some members thought it best to refer the matter to four of the legal members of the group. However, Mr. Camp, perhaps reflecting a common attitude toward lawyers of that period, did not believe that the members who are not legal gentlemen have sufficient faith in the supereminent abilities of the gentlemen of the Commission who are legal gentlemen, to accede blindly to any interpretation they might put upon this bill.” He seemed to be correct because the whole membership continued to discuss the matter. It was during this discussion that John Scott of the North Dakota Commission gave his very inconclusive definition of “archives”. “Now what are public records? It seems to me there can be but one interpretation, and that is, any of the book, papers and records remaining and belonging to the Territory of Dakota in any of the offices of the Territory—in the Auditor’s office, in the Treasurer’s office, the Governor’s office, in all the public offices…They are the archives.” No decision was reached during that session.

At the next session the importance of making a final decision on the division of the archives arose during a discussion of the claims against the territory and how they should be paid. What records would they need? If the original were in one state how would the other state operate? If transcriptions were made would they be valid? Who would pay for the transcriptions? Some thought that the records should be transcribed and the originals kept in a vault until the territory was divided and each state had an official authorized to receive the records. Others thought all the records should be kept in one state and the other have transcriptions made with the cost of transcription divided. Still others thought that the originals should be divided and transcriptions made for those records which would be necessary for the other state to operate.

After much discussion which was apparently quite acrimonious at times, the Journal of the Proceedings of the Joint Commission reports that Mr. Kellam said: “I want it, the resolution clarifying the Commission’s powers, done with deliberation” and suggested that two or three gentlemen “formulate what seems to be the prevailing idea with reference to these records, and report to the afternoon’s session”. After a special committee had been appointed the meeting adjourned.

At the next session the special committee of Messrs. Kellam, Scott and Spaulding presented the following resolution: Resolved, That it is the sense of this Joint Commission that in execution of the duty imposed upon it by the Act of Congress under which it was created relating to the disposition of the public records, it would provide for copies of such records as will in its judgment, be required as necessary for the proposed States of North Dakota and South Dakota to inaugurate and continue such States respectively in their various departments, and that as agreement be made by this Commission as to the disposition of both original and copies, and that such agreement shall be reported by the committees from North Dakota and South Dakota to their respective Conventions, with the recommendation that the same be made a part of the Schedule and Ordinance to be submitted with the proposed Constitution for ratification by the people of North Dakota and South Dakota respectively.” The resolution was adopted. Thus the members of the Commission reconciled their differences by agreeing that they were authorized to divide the archives, fulfilling section six of the Enabling Act, and providing that the agreement would be put in the Schedule of each state so that it would be ratified by the people, fulfilling section five.

A committee of two, one from each Commission, was appointed to examine and report to the Joint Commission what books and records it was necessary to transcribe and also the probably expense of the transcriptions. The two members were excused from participation in the further deliberations of the Commission.

On July 24 the Committee made the following recommendations:
1. Certain records should be transcribed—the original being kept by one state and the transcription to the other.
2. Those records pertaining particularly to either section should be allotted to that section.
3. Where they referred to the two sections in general they should be grouped in lots and the sections to select from the groups, the first choice to be by lot.
4. Where the records were to be transcribed, the expense was to be divided equally between the two sections.
5. Lists the particular details of the records to be transcribed

There was much discussion on the report, some still favoring having one state keep all originals and the other having transcriptions. In the middle of this discussion Mr. Harris of Burleigh County, North Dakota, got around to historians and the necessity for keeping the records. He commented that some records would be necessary for the States to have in order to begin business, that there were some which each state would want, and “a large mass of stuff we have provided shall be separated by lot, each a block, of no value whatever, neither will be wanted by either State except as a matter of history. And when the historian in ages to come goes back into all these vouchers, he will take it out of a large volume of stuff. That is all it will ever be used for.” There was still no agreement on the report or even whether they should refer the matter back to the committee. It was finally decided to postpone further action until the next Monday at which time the committee was to report on “what books and papers it will be necessary to have copied in order that the two states may inaugurate their existence.”
The subcommittee reported that the records referred to were those in the offices of the Auditor and Treasurer. Some objection was made to a division being made before the records necessary for the state to begin business were copied. It then developed that South Dakota had no permanent capital and consequently no safe place in which to keep the records. It would be some time before such a place would be available.

Mr. Kellam next summarized the thinking of the Commission as follows: This Commission shall agree upon a division of all records, papers, files and books not already provided to be copied, in manner following, to wit: All records and files pertaining exclusively to institutions in South Dakota shall be the property of South Dakota, and all records and files pertaining exclusively to institutions in North Dakota shall be the property of North Dakota. All other records, etc., not provided to be copied or divided as above shall be divided and grouped into two lots, as nearly of equal importance and value as possible, but so that the records of no office shall be divided by such grouping. Each State to have one of such two groups, to be determined by lot by this Commission. All records shall remain at the Capitol of North Dakota. South Dakota may at any time take possession of such of the records, files, etc., as under this agreement become the property of South Dakota, giving North Dakota reasonable time to make copies or abstracts thereof. If either State requires copies or abstracts of the records which under this agreement go to the other State, the expense thereof shall be borne equally by the two States. It shall also be determined by lot which State shall take the originals and which the copies of such records as are arranged by this Commission to be copied.

At the next session of the Commission Mr. Caldwell, chairman of the committee to whom was referred the matter of dividing the records into two lots recommended that lot one consist of the records in the office of the Secretary and the office of the Governor. Lot two included the records of all the other public offices which had not previously been divided. The report was accepted and the Commission proceeded to set up rules for the drawing. Two pieces of paper, one marked “North Dakota” and one marked “South Dakota” were to be put into a hat. Whichever name was drawn would have first choice. Mr. McClarren, Clerk of the South Dakota Commission put the slips in a hat; Mr. Hayden was blindfolded and drew the slip “North Dakota’. Mr. Camp, chairman of the North Dakota Commission chose lot number one, the records of the Secretary and the Governor.

The final agreement was contained in the final report of the Joint Commission and was submitted to the Conventions of the two states. It was accepted without debate and appeared in the North Dakota Schedule as Section twenty-one. The Commission adjourned on July 31, 1889, apparently well pleased with the results of their efforts to fulfill the obligations placed upon them by the Enabling Act.

CHRONOLOGY

1787 Organic law allows Congress, during the westward expansion of territories, to appoint a Governor, Secretary, and three Judges.

1861 Dakota Territory created by an Act of Congress on March 2, 1861.

1861 Yankton becomes Territorial Capitol.

1862-1868 Legislature meets annually.

1863-1864 Territorial boundaries limited to present day Dakota.

1864-1868 Dakota Territory expands to include Dakotas and Wyoming.

1868-1889 Legislature meets biennially.

1868-1889 Territory boundaries return to North and South Dakota.

1875 Congress adds an extra Associate Justice and creates District Courts.

1878 Responsibilities of Territory given to Department of the Interior.

1889 A fourteen-member Joint Committee for Division of Property meets in Bismarck at Constitutional Convention and divides the records of the Territory.

SERIES

Attorney General
30068 Records of the Attorney General.

Auditor
30069 Correspondence and Reports of Various Territorial Officials and Boards.
30070 Correspondence Concerning the Organization of Counties and Townships.
30071 Abstract of Assessment Rolls.
30072 Dakota Militia Account Book.
30073 Warrant Register.
30074 Vouchers.

Expositions and Conventions
30075 Register of Visitors, to the Dakota Exhibit at the World’s Industrial and Cotton Centennial Exposition in New Orleans, Louisiana.

Governor
30076 Official Papers of the Governor.
30077 Correspondence Concerning the Capitol.
30078 Transcripts of Testimony and Correspondence Concerning Murder Cases.
30079 Correspondence Concerning Schools and College.
30080 Correspondence Concerning the Hospital for the Insane.
30081 Correspondence Concerning Conventions and Expositions.
30082 Letters from Foreign Consulates in the United States.
30083 Department of the Interior and the Department of State Correspondence.
30084 Department of the Treasury Correspondence.
30085 US Post Office Correspondence.
30086 Certificates of the Final Entry and Purchase.
30087 Extradition Requisitions.
30088 Records of the Penitentiary.
30089 Records Concerning Military Affairs.
30090 Commissioner of Deed Records.
30091 Reports to the Governor.
30092 Proclamations.
30093 Abstracts of Disbursements.
30094 Miscellaneous.
30095 Petitions and Memorials.
Andrew Faulk Papers. (University of North Dakota, no. 62)
Louis Church Papers. (University of North Dakota, no. 72)

Hospital for the Insane
30096 Payroll Record.
30097 Abstracts of Disbursements.

Legislature
30098 Record of Action on House and Council Bills.
30099 Petitions and Memorials.

Military
30100 Muster Rolls.

Penitentiary
30101 Financial Reports.
30102 Inmate Roster.
30141 Statement of Accounts.
30103 Payroll Record.

Public Examiner
30104 Reports.

Department of Public Instruction
30105 Records.
30106 Annual Report of the County Superintendent of Schools.

Secretary
30107 Incoming Letters.
30108 Outgoing Letters.
30109 General Correspondence.
30110 Correspondence Concerning the Census.
30111 Census Schedules. 1885
30112 Correspondence Concerning Railroad Companies.
30113 Correspondence Concerning Legislation.
30114 Articles of Incorporation for Foreign and Domestic Corporations.
30115 Articles of Incorporation for Municipalities.
30116 House and Council Bills and Resolutions.
30690 Record of House and Council Bills and Resolutions Received from the Governor.
30117 Proceedings of the Joint Committee for the Division of Property.
30118 Militia Census.
30119 Certification of Election.

31118 Dakota Territorial Papers
1877-1886
Consists of records received by the Department of the Interior from the Governor and Secretary of Dakota Territory. Records include executive proceedings (copies of official acts of the Governor, proclamations, executive orders, extraditions, oaths of office, pardons, offers of rewards, speeches) and letters. The records relate to the condition of Territorial affairs, appointments and recommendations, legislation, maintenance and construction of public buildings, removal of the Territorial Capitol, statehood, maintenance of law and order, and administration of the federal prison in the Territory. (3r. #4249-4251)

31126 Dakota Territory Papers
1858-1873
Consists of petitions, memorials, legislative bills, resolutions, reports from executive departments, and letters received by the U.S. Senate relating to Dakota Territory. Series includes U.S. Senate records relating to Arizona Territory, 1857-1865. (1r. #4237)

30120 Records of Contested Elections.
30121 Abstract of Votes for the Election of Delegates to the South Dakota Constitutional Convention.
30123 Abstracts of Votes for the “Sioux Falls Constitution”.
30124 Abstracts of Votes.
30125 Oaths and Bonds.
30126 List of Civil War Veterans.
30127 Receipts for Books and Publications.
30128 Record of Books Borrowed from the Territorial Library.
30129 Notary Public Records.
30067 Stock Brand Certificates.
30130 Insurance Reports and Policies.
30131 Insurance Policies on the Capitol.
30132 Legislative Mileage Reports.
30133 Affidavits of Publications.
30134 Architectural Drawings of the Insane Asylum.
30135 Bank Statements.
Oscar Whitney Papers. (University of North Dakota, no. 228)
Letters of the Secretary of the Dakota Territory.(University of North Dakota, microfilm)

Supreme Court
32396 Supreme Court Cases. (University of North Dakota, microfilm)
31117 U.S. District Court Journals, Dockets. (University of North Dakota, microfilm, and National Archives, Kansas City Regional Archives, 1970)

Treasurer
30136 School District Number One Bonds.
30137 Penitentiary Bonds.
30138 North Dakota Hospital for the Insane Bonds.
30139 University of North Dakota Bonds.

Veterinary Surgeon
30140 Records.

Miscellaneous
Dakota Territorial Records. (University of North Dakota, microfilm-some available at the North Dakota State Archives)
Records of the Dakota Territory.
Miscellaneous Documents Relating to the Constitution of the State of North Dakota.

SOURCE

Gray, David P. Guide to North Dakota State Archives, 1985.

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