====== The Enabling Act ======
([[https://www.loc.gov/law/help/statutes-at-large/50th-congress/session-2/c50s2ch180.pdf|Act of February 22, 1889, Ch. 180, 25 Statutes at Large 676.]])
An act to provide for the division of Dakota into two states, and to enable the
people of North Dakota, South Dakota, Montana, and Washington to form
constitutions and state governments, and to be admitted into the union on an
equal footing with the original states, and to make donations of public lands
to such states.
Be it enacted by the senate and house of representatives of the United States
of America in Congress assembled, that the inhabitants of all that part of the
area of the United States now constituting the territories of Dakota, Montana,
and Washington, as at present described, may become the states of North Dakota,
South Dakota, Montana, and Washington respectively, as hereinafter provided.
=== Section 2. ===
The area comprising the territory of Dakota shall, for the purposes
of this act, be divided on the line of the seventh standard parallel produced
due west to the western boundary of said territory; and the delegates elected
as hereinafter provided to the constitutional convention in districts north of
said parallel shall assemble in convention, at the time prescribed in this act,
at the city of Bismarck; and the delegates elected in districts south of said
parallel shall, at the same time, assemble in convention at the city of Sioux
Falls.
=== Section 3. ===
That all persons who are qualified by the laws of said territories
to vote for representatives to the legislative assemblies thereof, are hereby
authorized to vote for and choose delegates to form conventions in said
proposed states; and the qualifications for delegates to such conventions shall
be such as by the laws of said territories, respectively, persons, are required
to possess to be eligible to the legislative assemblies thereof, and the
aforesaid delegates to form said conventions shall be apportioned within the
limits of the proposed states, in such districts as may be established as
herein provided, in proportion to the population in each of said counties and
districts, as near as may be, to be ascertained at the time of making said
apportionments by the persons hereinafter authorized to make the same, from the
best information obtainable, in each of which districts three delegates shall
be elected, but no elector shall vote for more than two persons for delegates
to such conventions; that said apportionments shall be made by the Governor,
the chief justice and the secretary of said territories; and the governors of
said territories shall, by proclamation, order an election of the delegates
aforesaid in each of said proposed states, to be held on the Tuesday after the
second Monday in May, 1889, which proclamation shall be issued on the fifteenth
day of April 1889; and such election shall be conducted, the returns made, the
result ascertained and the certificates to persons elected to such conventions
issued in the same manner as is prescribed by the laws of the said territories
regulating elections therein for delegates to Congress; and the number of votes
cast for delegates in each precinct shall also be returned. The number of
delegates to said conventions respectively, shall be seventy-five; and all
persons resident in said proposed states, who are qualified voters of said
territories as herein provided, shall be entitled to vote upon the election of
delegates, and under such rules and regulations as said conventions may
prescribe, not in conflict with this act, upon the ratification or rejection of
the constitutions.
=== Section 4. ===
That the delegates to the conventions elected as provided for in
this act shall meet at the seat of government of each of said territories,
except the delegates elected in South Dakota, who shall meet at the city of
Sioux Falls, on the fourth day of July, 1889, and, after organization, shall
declare on behalf of the people of said proposed states, that they adopt the
Constitution of the United States; whereupon the said conventions shall be, and
are hereby authorized to form constitutions and state governments for said
proposed states, respectively. The Constitution shall be republican in form,
and make no distinction in civil or political rights on account of race or
color, except as to Indians not taxed, and not be repugnant to the Constitution
of the United States and the principles of the Declaration of Independence. And
said convention shall provide by ordinances irrevocable without the consent of
the United States and the people of said states:
First. That perfect toleration of religious sentiment shall be secured, and
that no inhabitant of said states shall ever be molested in person or property
on account of his or her mode of religious worship.
Second. That the people inhabiting said proposed states do agree and declare
that they forever disclaim all right and title to the unappropriated public
lands lying within the boundaries thereof, and to all lands lying within said
limits owned or held by any Indian or Indian tribes; and that until the title
thereto shall have been extinguished by the United States, the same shall be
and remain subject to the disposition of the United States, and said Indian
lands shall remain under the absolute jurisdiction and control of the Congress
of the United States; that the lands belonging to citizens of the United States
residing without the said states shall never be taxed at a higher rate than the
lands belonging to residents thereof; that no taxes shall be imposed by the
states on lands or property therein belonging to or which may hereafter be
purchased by the United States or reserved for its use. But nothing herein, or
in the ordinances herein provided for, shall preclude the said states from
taxing as other lands are taxed any lands owned or held by any Indian who has
severed his tribal relations, and has obtained from the United States or from
any person a title thereto by patent or other grant, save and except such lands
as have been or may be granted to any Indian or Indians under any act of
Congress containing a provision exempting the lands thus granted from taxation;
but said ordinances shall provide that all such lands shall be exempt from
taxation by said states so long and to such extent as such act of Congress may
prescribe.
Third. That the debts and liabilities of said territories shall be assumed and
paid by said states, respectively.
Fourth. That provision shall be made for the establishment and maintenance of
systems of public schools, which shall be open to all the children of said
states, and free from sectarian control.
=== Indian Lands. ===
== -Federal Jurisdiction and Control. ==
Since jurisdiction and control of Indian lands remains in the United States
under section 4 of the Enabling Act, congress could enact an act making
criminal the introduction of intoxicating liquor upon an allotment within the
limits of an Indian reservation. United States v. Sutton, [[https://courtlistener.com/c/U.S./215/291/|215 U.S. 291]], 30 S.Ct. 116, 54 L. Ed. 200 (1909).
Lands within South Dakota which were formerly a part of an Indian reservation
and not restored to the public domain and open to settlement, but held by an
Indian allottee under a trust patent, are Indian lands over which the United
States has exclusive jurisdiction. Ex Parte Van Moore, 221 F. 954 (D. S.D. 1915).
Under the Enabling Act and the disclaimer provision in the Constitution of
South Dakota, not only lands, but all other property issued by the United
States government to Indian allottees for use thereon, remained subject to
federal control until Congress relinquished the trust. United States v.
Pearson, 231 F. 270 (D.S.D. 1916).
Whether Indian pantentees of land in a reservation, created by Indian treaty,
took to high or low watermark of a lake was not a question of state law.
Montana Power Co. v. Rochester, [[https://courtlistener.com/c/F.2d/127/189/|127 F.2d 189]] (9th Cir. 1942).
== -Jurisdiction of State. ==
The compact between the United States and North Dakota created by section 4 of
the Enabling Act and art. XIII, sec. 1 of the state Constitution did not
reserve to the United States exclusive jurisdiction of civil causes of action
not involving lands, between Indians residing on reservations. Vermilion v.
Spotted Elk, [[https://links.casemakerlegal.com/docid/3777337?bookname=public_url&ci=95|85 N.W.2d 432]] (N.D. 1957).
== -Voting Rights of Indians. ==
It was the duty of county commissioners to establish a voting precinct within
or for a territory situated within the county limits and also within the limits
of an Indian reservation, where the territory had, under an act of Congress,
been allotted to certain Indians and they were living upon the allotments and
farming the same. State ex rel. Tompton v. Denoyer, [[https://links.casemakerlegal.com/docid/3777338?bookname=public_url&ci=95|6 N.D. 586]], 72 N.W. 1014
(1897).
== Schools and School Districts ==
An act of the territorial legislature organizing an independent school district
was subject to amendment by the state legislature. Jones v. Brightwood Indep.
Sch. Dist., [[https://links.casemakerlegal.com/docid/3777341?bookname=public_url&ci=95|63 N.D. 275]], 247 N.W. 884 (1933).
== State Political and Governmental Control. ==
Section 4, subdivision 2, of the Enabling Act and the compact embraced in art.
XIII, sec. 1 of the state Constitution, vested in the state all jurisdiction
not expressly reserved in the Congress of the United States, over certain
territory embraced in what is known as the Ft. Berthold Indian reservation.
State ex rel. Baker v. Mountrail County, [[https://links.casemakerlegal.com/docid/3777342?bookname=public_url&ci=95|28 N.D. 389]], 149 N.W. 120 (1914).
The state may rightfully exercise political and governmental control over lands
formerly within a military reservation and reserved by the United States for
Indian school and Indian agency purposes, to the extent of including them
within its political subdivisions for political and governmental purposes. La
Duke v. Melin, [[https://links.casemakerlegal.com/docid/3777343?bookname=public_url&ci=95|45 N.D. 349]], 177 N.W. 673 (1920).
== Unappropriated Public Lands. ==
The beds of navigable streams are not "unappropriated public lands" included
within the disclaimer of title contained in section 4 of the Enabling Act.
State v. Loy, [[https://links.casemakerlegal.com/docid/1661851?bookname=public_url&ci=95|74 N.D. 182]], 20 N.W.2d 668 (1945).
Section 5. That the convention which shall assemble at Bismarck shall form a
Constitution and state government for a state to be known as North Dakota, and
the convention which shall assemble at Sioux Falls shall form a Constitution
and state government for a state to be known as South Dakota; provided, that at
the election for delegates to the constitutional convention in South Dakota, as
hereinbefore provided, each elector may have written or printed on his ballot,
the words, "For the Sioux Falls Constitution," or the words, "Against the Sioux
Falls Constitution," and the votes on this question shall be returned and
canvassed in the same manner as for the election provided for in section 3 of
this act; and if a majority of all votes cast on this question shall be "For
the Sioux Falls Constitution," it shall be the duty of the convention which may
assemble at Sioux Falls, as herein provided, to resubmit to the people of South
Dakota, for ratification or rejection, at the election hereinafter provided for
in this act, the Constitution framed at Sioux Falls, and adopted November 3,
1885, and also the articles and propositions separately submitted at that
election, including the question of locating the temporary seat of government,
with such changes only as relate to the name and boundary of the proposed
state, to the reapportionment of the judicial and legislative districts, and
such amendments as may be necessary in order to comply with the provisions of
this act; and if a majority of the votes cast on the ratification or rejection
of the Constitution shall be for the Constitution irrespective of the article
separately submitted, the state of South Dakota shall be admitted as a state in
the union under said Constitution as hereinafter provided; 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. But if at the election for delegates to the constitutional
convention in South Dakota a majority of all that votes cast at that election
shall be "Against the Sioux Falls Constitution," then, and in that event, it
shall be the duty of the convention which will assemble at the city of Sioux
Falls on the fourth day of July, 1889, to proceed to form a Constitution and
state government as provided in this act the same as if that question had not
been submitted to a vote of the people of South Dakota.
=== Section 6. ===
It shall be the duty of the constitutional conventions of North
Dakota and South Dakota to appoint a joint commission, to be composed of not
less than three members to each convention, whose duty it shall be to assemble
at Bismarck, the present seat of government of said territory, and agree upon
an equitable division of all property belonging to the territory of Dakota, the
disposition of all public records, and also adjust and agree upon the amount of
the debts and liabilities of the territory, which shall be assumed and paid by
each of the proposed states of North Dakota and South Dakota; and the agreement
reached respecting the territorial debts and liabilities shall be incorporated
into the respective Constitutions, and each of said states shall obligate
itself to pay its proportion of such debts and liabilities the same as if they
had been created by such states respectively.
=== Section 7. ===
If the Constitutions formed for both North Dakota and South Dakota
shall be rejected by the people at the elections for the ratification or
rejection of their respective Constitutions as provided for in this act, the
territorial government of Dakota shall continue in existence the same as if
this act had not been passed. But if the Constitution formed for either North
Dakota or South Dakota shall be rejected by the people, that part of the
territory so rejecting its proposed Constitution shall continue under the
territorial government of the present territory of Dakota, but shall, after the
state adopting its Constitution is admitted into the union, be called by the
name of the territory of North Dakota or South Dakota, as the case may be;
provided, that if either of the proposed states provided for in this act shall
reject the Constitution which may be submitted for ratification or rejection at
the election provided therefor, the Governor of the territory in which such
proposed Constitution was rejected shall issue his proclamation reconvening the
delegates ejected to the convention which formed such rejected Constitution,
fixing the time and place at which said delegates shall assemble; and when so
assembled they shall proceed to form another Constitution or to amend the
rejected Constitution, and shall submit such new Constitution or amended
Constitution to the people of the proposed state for ratification or rejection,
at such time as said convention may determine; and all the provisions of this
act, so far as applicable, shall apply to such convention so reassembled and to
the Constitution which may be formed, its ratification or rejection, and to the
admission of the proposed state.
=== Section 8. ===
That the constitutional convention which may assemble in South
Dakota shall provide by ordinance for resubmitting the Sioux Falls Constitution
of 1885, after having amended the same as provided in section 5 of this act, to
the people of South Dakota for ratification or rejection at an election to be
held therein on the first Tuesday in October, 1889; but if said constitutional
convention is authorized and required to form a new Constitution for South
Dakota, it shall provide for submitting the same in like manner to the people
of South Dakota for ratification or rejection, at an election to be held in
said proposed state on the said first Tuesday in October. And the
Constitutional conventions which may assemble in North Dakota, Montana, and
Washington, shall provide in like manner for submitting the Constitutions
formed by them to the people of said proposed states respectively, for
ratification or rejection, at elections to be held in said proposed states on
the first Tuesday in October. At the elections provided for in this section the
qualified voters of said proposed states shall vote directly for or against the
proposed Constitutions, and for or against any articles or propositions
separately submitted. The returns of said elections shall be made to the
secretary of each of said territories, who, with the Governor and chief justice
thereof, or any two of them, shall canvass the same; and if a majority of the
legal votes cast shall be for the Constitution, the Governor shall certify the
result to the president of the United States, together with a statement of the
votes cast thereon and upon separate articles or propositions, and a copy of
the said Constitution, articles, propositions, and ordinances. And if the
Constitutions and governments, of said proposed states are republican in form,
and if all the provisions of this act have been complied with in the formation
thereof, it shall be the duty of the president of the United States to issue
his proclamation announcing the result of the election in each, and thereupon
the proposed states which have adopted Constitutions and formed state
governments, as herein provided, shall be deemed admitted by congress into the
union, under and by virtue of this act, on an equal footing with the original
states from and after the state of said proclamation.
== Adoption of Article ==
An article of the Constitution which received a majority of all the votes cast
upon the question of its adoption and upon the question of the adoption of the
Constitution was legally adopted though it failed to receive a majority of
votes cast for governor. State ex rel. Larabee v. Barnes, [[https://links.casemakerlegal.com/docid/3777349?bookname=public_url&ci=95|3 N.D. 319]], 55 N.W.
883 (1893).
=== Section 9. ===
That until the next general census, or until otherwise provided by
law, said states shall be entitled to one representative in the house of
representatives to the fifty-first Congress, together with the Governors and
other officers provided for in said Constitutions, may be elected on the same
day of the election for the ratification or rejection of the Constitutions; and
until said state officers are elected and qualified under the provisions of
each Constitution and the states, respectively, are admitted into the union,
the territorial officers shall continue to discharge the duties of their
respective offices in each of said territories.
=== Section 10. ===
That upon the admission of each of said states into the union,
sections numbered sixteen and thirty-six in every township of said proposed
states, and where such sections, or any parts thereof, have been sold or
otherwise disposed of by or under the authority of any act of Congress, other
lands equivalent thereto, in legal subdivisions of not less than one-quarter
section, and as contiguous as may be to the section in lieu of which the same
is taken, are hereby granted to said states for the support of common schools,
such indemnity lands to be selected within said states in such manner as the
Legislature may provide, with the approval of the secretary of the interior;
provided, that the sixteenth and thirty-sixth sections embraced in permanent
reservations for national purposes shall not, at any time, be subject to the
grant nor to the indemnity provisions of this act, nor shall any lands embraced
in Indian, military or other reservations of any character, be subject to the
grants or to the indemnity provisions of this act until the reservation shall
have been extinguished and such lands be restored to, and become a part of, the
public domain.
== Bankruptcy Act Proceedings. ==
The fact that land being sold under contract to a bankrupt farmer was a part of
the trust funds created by the Enabling Act did not exclude the land from
administration under Bankruptcy Act proceedings. North Dakota v. Hegstad, 134
F.2d 598 (8th Cir. 1943).
A bankrupt whose land is sold to the state on foreclosure of a mortgage
securing a loan of permanent school funds may redeem by payment of the value of
the land as fixed under the provisions of the Federal Bankruptcy Act, even
though for less than the amount required for redemption under state law. North
Dakota v. Towner County, 142 F.2d 48 (8th Cir. 1944).
== Permanent School Fund. ==
The entire grant of land to the state for educational purposes was in trust and
the express terms of the grant required the state as trustee to maintain the
permanency of the funds acquired through the grant. The state is limited to the
use of the interest from the permanent fund and the interest shall be used only
for the support of schools.
State ex rel. Bd. Of Univ. & Sch. Lands v. McMillan,
[[https://links.casemakerlegal.com/docid/2530415?bookname=public_url&ci=95|12 N.D. 280]], 96 N.W. 310 (1903), distinguished,
Lang v. City of Cavalier, [[https://links.casemakerlegal.com/docid/1083924?bookname=public_url&ci=95|59 N.D. 75]], 228 N.W. 819 (1930).
The assembly cannot divert nor authorize diversion of any part of the principal
or interest or income from the investment of funds under the control of the
board of university and school lands arising from the rental or sale of lands
granted by the United States to any purposes other than those for which grants
were made and any diversion to other purposes or any donation thereof in aid of
an individual, by the assembly directly, or by the board of university and
school lands by legislative enactment is unconstitutional. State ex rel. Sathre
v. Board of Univ. & Sch. Lands, [[https://links.casemakerlegal.com/docid/3777356?bookname=public_url&ci=95|65 N.D. 687]], 262 N.W. 60 (1935).
=== Section 11. ===
That all lands granted by this act shall be disposed of only at
public sale after advertising - tillable lands capable of producing
agricultural crops for not less than $10 per acre and lands principally
valuable for grazing purposes for not less than $5 per acre. Any of the said
lands may be exchanged for other lands, public or private, or equal value and
as near as may be of equal area, but if any of the said lands are exchanged
with the United States such exchange shall be limited to Federal lands that are
surveyed, nonmineral, unreserved public lands within the state or are reserved
public lands within the State that are subject to exchange under the laws
governing the administration of such Federal reserved public lands.
All exchanges heretofore made under section 11 of the Act approved February 22,
1889 (25 Stat. 676), as amended by the Act approved May 7, 1932 (47 Stat. 150),
for reserved public lands of the United States that were subject to exchange
under law pursuant to which they were being administered and the requirements
thereof have been met, are hereby approved to the same extent as though the
lands exchanged were unreserved public lands.
The said lands may be leased under such regulations as the legislature may
prescribe.
The state may also, upon such terms as it may prescribe, grant such easements
or rights in any of the lands granted by this act, as may be acquired in
privately owned lands through proceedings in eminent domain: provided, however,
that none of such lands, nor any estate or interest therein, shall ever be
disposed of except in pursuance of general laws providing for such disposition,
nor unless the full market value of the estate or interest disposed of, to be
ascertained in such manner as may be provided by law, has been paid or safely
secured to the state.
With the exception of the lands granted for public buildings, the proceeds from
the sale and other permanent disposition of any of the said lands and from
every part thereof, shall constitute permanent funds for the support and
maintenance of the public schools and the various state institutions for which
the lands have been granted. Rentals on leased land, proceeds from the sale of
timber and other crops, interest on deferred payments on land sold, interest on
funds arising from these lands, and all other actual income, shall be available
for the acquisition and construction of facilities, including the retirement of
bonds authorized by law for such purposes, and for the maintenance and support
of such schools and institutions. Any state may, however, in its discretion,
add a portion of the annual income to the permanent funds. Notwithstanding the
foregoing provisions of this section, each of the states of North Dakota, South
Dakota, and Washington may pool the moneys received by it from oil and gas and
other mineral leasing of said lands. The moneys so pooled shall be apportioned
among the public schools and the various state institutions shall receive an
amount which bears the same ratio to the total amount apportioned as the number
of acres (including any that may have been disposed of) granted for such public
schools or for such institutions bears to the total number of acres (including
any that may have been disposed of) granted by this act. Not less than fifty
per centum of each such amount shall be covered into the appropriate permanent
fund.
The lands hereby granted shall not be subject to pre-emption, homestead entry,
or any other entry under the land laws of the United States whether surveyed or
unsurveyed, but shall be reserved for the purposes for which they have been
granted.
History: As amended by
[[https://www.loc.gov/law/help/statutes-at-large/67th-congress/Session%201/c67s1ch61.pdf|Act of August 11, 1921, ch. 61, 42 Stat. 158]];
[[https://www.loc.gov/law/help/statutes-at-large/72nd-congress/session-1/c72s1ch172.pdf|Act of May 7, 1932, ch. 172, 47 Stat. 150]];
[[https://www.loc.gov/law/help/statutes-at-large/75th-congress/session-3/c75s3ch700.pdf|Act of June 25, 1938, ch. 700, 52 Stat. 1198]];
[[https://www.loc.gov/law/help/statutes-at-large/80th-congress/session-2/c80s2ch183.pdf|Act of April 13, 1948, ch. 183, 62 Stat. 170]];
[[https://www.govinfo.gov/content/pkg/STATUTE-66/pdf/STATUTE-66-Pg283.pdf|Act of June 28, 1952, ch. 480, 66 Stat. 283]];
[[https://www.govinfo.gov/content/pkg/STATUTE-81/pdf/STATUTE-81-Pg106.pdf|Act of June 30, 1967, Public Law 90-41, 81 Stat. 106]];
[[https://www.govinfo.gov/content/pkg/STATUTE-84/pdf/STATUTE-84-Pg987.pdf|Act of October 16, 1970, Public Law 91-463, 84 Stat. 987]].
== Condemnation of School Lands. ==
Where a state statute relating to the condemnation of right of way by the state
highway commission contemplates that title to lands shall be acquired, such
procedure cannot be resorted to acquire school land granted to the state. State
Hwy. Comm'n v. State, [[https://links.casemakerlegal.com/docid/3777362?bookname=public_url&ci=95|70 N. D. 673]], 297 N.W. 194 (1940).
== Oil and Gas Leases ==
Under the Enabling Act, as amended, the state has full power to provide for the
execution of oil and gas leases on school and university lands. State ex rel.
Rausch v. Amerada Petro. Corp., [[https://links.casemakerlegal.com/docid/1329043?bookname=public_url&ci=95|78 N.D. 247]], 49 N.W.2d 14 (1951).
== Taxation ==
When a contract for the sale of school land is canceled, the land reverts to
the state, and no interest in the land is subject to taxation until a resale or
redemption is made. Upon reversion of the land to the state, all unpaid taxes
levied thereon are canceled. State v. Towner County, [[https://links.casemakerlegal.com/docid/3777360?bookname=public_url&ci=95|68 N.D. 629]], 283 N.W. 63
(1938).
=== Section 12. ===
That upon the admission of each of said states into the union, in
accordance with the provisions of this act, fifty sections of the
unappropriated public lands within said states, to be selected and located in
legal subdivisions as provided in section 10 of this act, shall be, and are
hereby granted to said states for public buildings at the capital of said
states for legislative, executive, and judicial purposes, including
construction, reconstruction, repair, renovation, furnishings, equipment, and
any other permanent improvement of such buildings, and the acquisition of
necessary land for such buildings, and the payment of principal and interest on
bonds issued for any of the above purposes.
=== Section 13. ===
That five per centum of the proceeds of the sales of public lands
lying within said states which shall be sold by the United States subsequent to
the admission of said states into the union, after deducting all the expenses
incident to the same, shall be paid to the said states, to be used as a
permanent fund, the interest of which only shall be expended for the support of
the common schools within said states, respectively.
=== Section 14. ===
That the lands granted to the territories of Dakota and Montana by
the Act of February 18, 1881, entitled "An Act to grant lands to Dakota,
Montana, Arizona, Idaho, and Wyoming for university purposes," are hereby
vested in the states of South Dakota, North Dakota, and Montana respectively,
if such states are admitted into the union as provided in this act, to the
extent of the full quantity of seventy-two sections to each of said states, and
any portion of said lands that may not have been selected by either of said
territories of Dakota or Montana may be selected by the respective states
aforesaid; but said Act of February 18, 1881, shall be so amended as to provide
that none of said lands shall be sold for less than $10 per acre, and the
proceeds shall constitute a permanent fund to be safely invested and held by
said states severally, and the income thereof be used exclusively for
university purposes. And such quantity of the lands authorized by the fourth
section of the Act of July 17, 1854, to be reserved for university purposes in
the territory of Washington, as together with the lands confirmed to the
vendees of the territory by the Act of March 14, 1864, will make the full
quantity of seventy- two entire sections, are hereby granted in like manner to
the state of Washington for the purposes of a university in said state. None of
the lands granted in this section shall be sold at less than $10 per acre; but
said lands may be leased in the same manner as provided in section 11 of this
act. The schools, colleges and universities provided for in this act shall
forever remain under the exclusive control of the said states, respectively,
and no part of the proceeds arising from the sale or disposal of any lands
herein granted for educational purposes shall be used for the support of any
secretarian or denominational school, college, or university. The section of
land granted by the Act of June 16, 1880, to the territory of Dakota, for an
asylum for the insane shall, upon the admission of said state of South Dakota
into the union, become the property of said state.
=== Section 15. ===
That so much of the land belonging to the United States as have
been acquired and set apart for the purpose mentioned in "An act appropriating
money for the erection of a penitentiary in the territory of Dakota," approved
March 2, 1881, together with the buildings thereon, be, and the same is hereby
granted, together with any unexpended balances of the money appropriated
therefor by said act, to said state of South Dakota, for the purposes therein
designated; and the states of North Dakota and Washington shall, respectively,
have like grants for the same purpose, and subject to like terms and conditions
as provided in said Act of March 2, 1881, for the territory of Dakota. The
penitentiary at Deer Lodge City, Montana, and all lands connected therewith and
set apart and reserved therefor, are hereby granted to the state of Montana.
=== Section 16. ===
That ninety thousand acres of land, to be selected and located as
provided in section 10 of this act, are hereby granted to each of said states
except to the state of South Dakota, to which one hundred twenty thousand acres
are granted for the use and support of agricultural colleges in said states, as
provided in the acts of Congress making donations of lands for such purposes.
=== Section 17. ===
That in lieu of the grant of land for purposes of internal
improvement made to new states by the eighth section of the Act of September 4,
1841, which act is hereby repealed as to the states provided for by this act,
and in lieu of any claim or demand by the said states, or either of them, under
the Act of September 28, 1850, and section 2479 of the Revised Statutes, making
a grant of swamp and overflowed lands to certain states, which grant it is
hereby declared is not extended to the states provided for in this act, and in
lieu of any grant of saline lands to said states, the following grants of land
are hereby made, to wit:
To the state of South Dakota: For the school of mines, forty thousand acres;
for the reform school, forty thousand acres; for the deaf and dumb asylum,
forty thousand acres; for the agricultural college, forty thousand acres; for
the university, forty thousand acres; for state normal school, eighty thousand
acres; for public buildings at the capital of said state, fifty thousand acres,
and for such other educational and charitable purposes as the Legislature of
said state may determine, one hundred seventy thousand acres; in all, five
hundred thousand acres.
To the state of North Dakota a like quantity of land as is in this section
granted to the state of South Dakota, and to be for like purposes, and in like
proportion as far as practicable.
To the state of Montana: For the establishment and maintenance of a school of
mines, one hundred thousand acres; for state normal schools, one hundred
thousand acres; for agricultural colleges, in addition to the grant
hereinbefore made for that purpose, fifty thousand acres; for the establishment
of a state reform school, fifty thousand acres; for the establishment of a deaf
and dumb asylum, fifty thousand acres; for public buildings at the capital of
the state, in addition to the grant hereinbefore made for that purpose, one
hundred fifty thousand acres.
To the state of Washington: For the establishment and maintenance of a
scientific school, one hundred thousand acres; for state normal schools, one
hundred thousand acres; for public buildings at the state capital in addition
to the grant hereinbefore made for that purpose, one hundred thousand acres;
for state, charitable, educational, penal, and reformatory institutions, two
hundred thousand acres.
That the states provided for in this act shall not be entitled to any further
or other grants of land for any purpose than as expressly provided in this act.
And the lands granted by this section shall be held, appropriated, and disposed
of exclusively for the purposes herein mentioned, in such manner as the
legislatures of the respective states may severally provide.
== In General. ==
The power to determine the manner of the use of public lands granted by the
Enabling Act is purely legislative and cannot be delegated to a commission.
State ex rel. Rusk v. Budge, [[https://links.casemakerlegal.com/docid/3777334?bookname=public_url&ci=95|14 N.D. 532]], 105 N.W. 724 (1905), distinguished,
More v. Western Grain Co., [[https://links.casemakerlegal.com/docid/3777335?bookname=public_url&ci=95|37 N.D. 547]], 164 N.W. 294 (1917).
== Charitable Purposes. ==
The words "charitable purposes" should be construed in a broad, and not limited
meaning, to include acts of public benefaction which are done for public
purposes, as well as mere almsgiving or benefaction to the poor, and, as so
construed, the section authorizes the maintenance of an institution which shall
care for all classes of aged and infirm soldiers, irrespective of their
monetary worth. State ex rel. Skeffington v. Seigfried, 40 N.D. 57, 168 N.W. 62
(1918).
== Governor's Residence. ==
The erection of a resident for the governor at the capital is within the
purposes of the grant of land made by congress to the state for public
buildings at the capital under the Enabling Act. State ex rel. Rusk v. Budge,
[[https://links.casemakerlegal.com/docid/3777334?bookname=public_url&ci=95|14 N.D. 532]], 105 N.W. 724 (1905), distinguished, More v. Western Grain Co., [[https://links.casemakerlegal.com/docid/3777335?bookname=public_url&ci=95|37 N.D. 547]], 164 N.W. 294 (1917).
== Limitation on Legislative Disposal of Lands. ==
The Montana legislature must act in subordination to the state Constitution in
executing the authority entrusted to it in section 17 of the Enabling Act.
Montana ex rel. Haire v. Rice, [[https://courtlistener.com/c/U.S./204/291/|204 U.S. 291]], 27 S. Ct. 281, 51 L. Ed. 490
(1907).
=== Section 18. ===
That all mineral lands shall be exempted from the grants made by
this act. But if sections sixteen and thirty-six, or any subdivision or portion
of any smallest subdivision thereof in any township shall be found by the
department of the interior to be mineral lands, said states are hereby
authorized and empowered to select, in legal subdivisions, an equal quantity of
other unappropriated lands in said states, in lieu thereof, for the use and
benefit of the common schools of said states.
=== Section 19. ===
That all lands granted in quantity or as indemnity by this act
shall be selected, under the direction of the secretary of the interior, from
the surveyed, unreserved, and unappropriated public lands of the United States
within the limits of the respective states entitled thereto. And there shall be
deducted from the number of acres of land donated by this act for specific
objects to said states the number of acres in each heretofore donated by
Congress to said territories for similar objects.
=== Section 20. ===
That the sum of twenty thousand dollars or so much thereof as may
be necessary, is hereby appropriated, out of any money in the treasury not
otherwise appropriated, to each of said territories for defraying the expenses
of the said conventions, except to Dakota for which the sum of forty thousand
dollars is so appropriated, twenty thousand dollars each for South Dakota and
North Dakota, and for the payment of the members thereof, under the same rules
and regulations and at the same rates as are now provided by law for the
payment of the territorial legislatures. Any money hereby appropriated not
necessary for such purpose shall be covered into the treasury of the United
States.
=== Section 21. ===
That each of said states, when admitted as aforesaid, shall
constitute one judicial district, the names thereof to be the same as the names
of the states, respectively; and the circuit and district courts thereof shall
be held at the capital of such state for the time being, and each of said
districts shall, for judicial purposes, until otherwise provided, be attached
to the eighth judicial circuit, except Washington and Montana, which shall be
attached to the ninth judicial circuit. There shall be appointed for each of
said districts one district judge, one United States attorney and one United
States marshal. The judge of each of said districts shall receive a yearly
salary of three thousand five hundred dollars payable in four equal
installments, on the first days of January, April, July, and October of each
year, and shall reside in the district. There shall be appointed clerks of
said courts in each district, who shall keep their offices at the capital of
said state. The regular terms of said courts shall be held in each district, at
the place aforesaid on the first Monday in April and the first Monday in
November of each year, and only one grand jury and one petit jury shall be
summoned in both said circuit and district courts. The circuit and district
courts for each of said districts and the judges thereof, respectively, shall
possess the same powers and jurisdiction, and perform the same duties required
to be performed by the other circuit and district courts and judges of the
United States, and shall be governed by the same laws and regulations. The
marshal, district attorney, and clerks of the circuit and district courts of
each of said districts, and all other officers and persons performing duties in
the administration of justice therein, shall severally possess the powers and
perform the duties lawfully possessed and required to be performed by similar
officers in other districts of the United States; and shall, for the services
they may perform, receive the fees and compensation allowed by law to other
similar officers and persons performing similar duties in the state of
Nebraska.]
=== Section 22. ===
That all cases of appeal or writ of error heretofore prosecuted and
now pending in the Supreme Court of the United States upon any record from the
Supreme Court of either of the territories mentioned in this act, or that may
hereafter lawfully be prosecuted upon any record from either of said courts,
may be heard and determined by said Supreme Court of the United States. And the
mandate of execution or of further proceedings shall be directed by the Supreme
Court of the United States to the circuit or district court hereby established
within the state succeeding the territory from which such record is or may be
pending, or to the Supreme Court of such state, as the nature of the case may
require; provided, that the mandate of execution or of further proceedings
shall, in cases arising in the territory of Dakota, be directed by the Supreme
Court of the United States to the circuit or district court of the district of
South Dakota, or to the Supreme Court of the state of South Dakota, or to the
circuit or district court of the district of North Dakota, or to the Supreme
Court of the state of North Dakota, or to the Supreme Court of the territory of
North Dakota, as the nature of the case may require. And each of the circuit,
district, and state courts, herein named, shall, respectively, be the successor
of the Supreme Court of the territory, as to all such cases arising within the
limits embraced within the jurisdiction of such courts respectively, with full
power to proceed with the same, and award mesne or final process therein; and
that from all judgments and decrees of the Supreme Court of either of the
territories mentioned in this act, in any case arising within the limits of any
of the proposed states prior to admission, the parties to such judgment shall
have the same right to prosecute appeals and writs of error to the Supreme
Court of the United States as they shall have had by law prior to the admission
of said state into the union.
=== Section 23. ===
That in respect to all cases, proceedings, and matters now pending
in the Supreme or district Courts of either of the territories mentioned in
this act at the time of the admission into the union of either of the states
mentioned in this act, and arising within the limits of any such state, whereof
the circuit or district courts by this act established might have had
jurisdiction under the laws of the United States had such courts existed at the
time of the commencement of such cases, the said circuit and district courts,
respectively, shall be the successors of said Supreme and district Courts of
said territory; and in respect to all other cases, proceedings and matters
pending in the Supreme or district Courts of any of the territories mentioned
in this act at the time of the admission of such territory into the union,
arising within the limits of said proposed state, the courts established by
such state shall, respectively, be the successors of said Supreme and district
territorial Courts; and all the files, records, indictments, and proceedings
relating to any such cases, shall be transferred to such circuit, district, and
state courts, respectively, and the same shall be proceeded with therein in due
courts of law; but no writ, action, indictment, cause, or proceeding now
pending, or that prior to the admission of any of the states mentioned in this
act, shall be pending in any territorial court in any of the territories
mentioned in this act, shall abate by the admission of any such state into the
union, but the same shall be transferred and proceeded with, in the proper
United States circuit, district, or state court, as the case may be; provided,
however, that in all civil actions, causes, and proceedings, in which the
United States is not a party, transfers shall not be made to the circuit and
district courts of the United States except upon written request of one of the
parties to such action or proceeding filed in the proper court; and in the
absence of such request, such cases shall be proceeded with in the proper state
courts.
=== Section 24. ===
That the constitutional conventions may, by ordinance, provide for
the election of officers for full state governments, including members of the
Legislatures and representatives in the fifty-first Congress; and said state
governments shall remain in abeyance until the states shall be admitted into
the union, respectively, as provided in this act. In case the Constitution of
any of said proposed states shall be ratified by the people, but not otherwise,
the Legislature thereof may assemble, organize, and elect two senators of the
United States, and the Governor and secretary of state of such proposed state
shall certify the election of the senators and representatives in the manner
required by law; and when such state is admitted into the union, the senators
and representatives shall be entitled to be admitted to seats in Congress, and
to all the rights and privileges of senators and representatives of other
states in the Congress of the United States; and the officers of the state
governments formed in pursuance of said Constitutions, as provided by the
constitutional conventions, shall proceed to exercise all the functions of such
state officers; and all laws in force made by said territories, at the time of
their admission into the union, shall be in force in said states, except as
modified or changed by this act, or by the Constitutions of the states,
respectively.
=== Section 25. ===
That all acts or parts of acts in conflict with the provisions of
this act, whether passed by the Legislatures of said territories or by
Congress, are hereby repealed.
=== Section 26. North Dakota Trust Funds. ===
(a) DISPOSITION. - Notwithstanding section 11, the State of North Dakota shall,
with respect to any trust fund in which proceeds from the sale of public land
are deposited under this Act (referred to in this section as the 'trust fund')
-
(1) deposit all revenues earned by a trust fund into the trust fund;
(2) deduct the costs of administering a trust fund from each trust fund; and
(3) manage each trust fund to -
(A) preserve the purchasing power of the trust fund; and
(B) maintain stable distributions to trust fund beneficiaries.
(b) DISTRIBUTIONS. - Notwithstanding section 11, any distributions from trust
funds in the State of North Dakota shall be made in accordance with section 2
of article IX of the Constitution of the State of North Dakota.
(c) MANAGEMENT OF PROCEEDS. - Notwithstanding section 13, the State of North
Dakota shall manage the proceeds referred to in that section in accordance with
subsections (a) and (b).
(d) MANAGEMENT OF LAND AND PROCEEDS. - Notwithstanding sections 14 and 16, the
State of North Dakota shall manage the land granted under that section,
including any proceeds from the land, and make distributions in accordance with
subsections (a) and (b).