Lawyers and judges figured prominently among those who helped shape Minnesota in its formative years. Reviewing the lives and times of a few of these lends perspective on our past and sheds light on how we might shape our future.
“My dear young friend, I sincerely pity you. We have a population of 600, and 50 of them are lawyers, the most of them starving. I advise you to take the next boat east, because you have no chance here. We have too much trouble with the lawyers here already.”1
This was the greeting attorney Rensselaer Russell Nelson received on his arrival in St. Paul. The year was 1850; Minnesota had just become a territory. Armed with a land warrant his father had received for fighting in the War of 1812, Nelson arrived from New York by riverboat, intending to open a law office. The first person he encountered, postmaster Jacob W. Bass, was not overly optimistic about attorney Nelson’s prospects. Undeterred, R.R. Nelson opened an office as counselor at law and general land agent.
Business for attorneys had not improved much by 1853, when attorney Charles E. Flandrau made his way from New York. Flandrau came to Minnesota with his good friend and fellow attorney Horace Bigelow. They set up a law practice, but “[b]usiness did not flow in upon them very fast; indeed, there was not very much of it to flow anywhere,” so Bigelow took to teaching and Flandrau went exploring, eventually setting up a practice in a settlement called Traverse des Sioux, near present-day St. Peter.2
Although establishing a law practice presented some initial challenges, both Nelson and Flandrau went on to make significant contributions to the development of Minnesota’s legal system—Nelson, as the first federal court judge for the United States District Court in Minnesota, and Flandrau, as one of the first judges on the Minnesota Supreme Court. Their paths intersected with other notable attorneys and territorial leaders, including Henry Hastings Sibley, Alexander Ramsey, and Joseph Renshaw Brown. Together, these five men influenced Minnesota’ s history during its formative period 150 years ago. How they came to Minnesota and how they reacted to the legal issues of their time tells us much about our state’s past and also offers perspective on the issues we face today.
Like many early European-American settlers who made their way to Minnesota, Nelson, Flandrau, Ramsey, Sibley, and Brown all came from families who had initially settled in New England. In fact, for a time, the influence of those from northeastern states earned Minnesota the nickname “New England of the West.”
R.R. Nelson and Charles Flandrau both came from prominent legal families in New York. Nelson’s father, Samuel Nelson, served on the United States Supreme Court, and Nelson’s grandfathers fought in the Revolutionary War. Flandrau’s father, Thomas Hunt Flandrau, practiced law in partnership with Aaron Burr. Charles Flandrau studied law at his father’s firm and R.R. Nelson attended Yale before studying law in New York. Both were young attorneys when they decided to head west to the Minnesota Territory: Nelson was 24 and Flandrau was 25.
Attorney Alexander Ramsey came to the territory from Pennsylvania in 1849 at the age of 34. Active in politics, Ramsey had helped to secure political victories for the Whig party in Pennsylvania, including President Zachary Taylor’s election as president in 1848. When the Minnesota Territory was established in March 1849, President Taylor appointed Ramsey to serve as Minnesota’s territorial governor.
One of the first people Ramsey encountered upon his arrival was attorney Henry Hastings Sibley. Sibley had come from Michigan in 1834 when he was 23 years old. Sibley’s father, Solomon Sibley, was a justice of the Michigan Supreme Court; son Henry studied law for two years in Michigan before informing his father that he found the study of law “irksome” and he “longed for a more active and stirring life.”3
Sibley found that life with the American Fur Company. In 1834, he was assigned to Mendota to take charge of the fur trade with the Dakota. Soon after he hired Joseph Renshaw Brown to work for the company’s Western Outfit at Lake Traverse, near the headwaters of the Minnesota River. Brown had come from Pennsylvania in 1820 at the age of 15 to play the fife in the army band at Fort Snelling.
Brown and Sibley played important roles in establishing Minnesota as a territory. Joined by attorneys Alexander Ramsey in 1849, R. R. Nelson in 1850, and Charles Flandrau in 1853, Brown and Sibley continued as leaders in Minnesota’s efforts to achieve statehood.
Dakota and Ojibwe
At the time the attorney-settlers arrived, Minnesota had not been admitted to the Union and the majority of those living here were Dakota or Ojibwe.4 According to one estimate, 31,700 Native Americans lived in and near the Minnesota Territory in 1850, along with approximately 6,000 European-American or “white” settlers.5 As fur traders, Brown and Sibley both developed relationships with the Dakota. Sibley spoke French and learned the Dakota language; the Dakota called him Wah-pe-ton Houska, meaning “the tall trader” or “Walker in the Pines.” Many Minnesota place names, including the name Minnesota, come from the Dakota or the Ojibwe.6
In 1837, the United States negotiated the first of several treaties with the Dakota and the Ojibwe. The 1837 treaty gave the United States access to timber resources on approximately 14 million acres of land east of the Mississippi; the treaty also reserved the right of the Ojibwe to hunt, fish, and gather food on a portion of the land around Lake Mille Lacs.7 An 1851 treaty purchased most of the land west of the Mississippi River from the Dakota. The Ojibwe agreed to separate treaties in 1854 and 1855 by which they ceded lands along Lake Superior and the future Iron Range as well as a portion of the central lakes district.
Ramsey, Sibley, and Brown participated in the treaty negotiations. In 1858, Brown went with a delegation of the Dakota to Washington D.C., where the Dakota sought payments that were long overdue and 1858 treaty agreements were made. The process and certain provisions of the treaties caused considerable resentment and mistrust on the part of the Native Americans. Nonetheless, as a result of the treaties, the Dakota and the Ojibwe ceded to the United States the territory that would become the state of Minnesota.8
Early Dispute Resolution
At the same time that treaties were being negotiated with the Dakota and the Ojibwe, Henry Sibley and Joseph R. Brown began to lay the groundwork for the state of Minnesota’s legal system. Beginning in the late 1830s, these two men “literally embodied” the law as the territorial justices of the peace.9 Brown served as a justice of the peace in what was then the Wisconsin Territory, holding court in Stillwater and at a small settlement he had established on Grey Cloud Island in the Mississippi River. Sibley served as a justice of the peace for what was then the Iowa Territory, holding court in the limestone home he had constructed in Mendota.
Although Brown had no legal training and very little formal education, both he and Sibley were respected for their ability to resolve the disputes presented to them. Their pre-territorial legal system marked itself as “fair and commonsensical”10 and, in at least one case, it included elements of creative alternative dispute resolution. In the “foot-race” case, Justice Brown was confronted with a land dispute between two Canadian Frenchmen, Michael Le Claire and Pierre Parrant. Convinced that neither party had established a valid claim to a piece of land at Pig’s Eye on the Mississippi, Justice Brown suggested that whoever reached the land first and staked it out would own the land. An eight-mile foot race ensued, which Le Claire “won.” Years later, Le Claire’s title was upheld on the ground that the parties had accepted as binding Justice Brown’s proposal for resolving their dispute.11
Establishing the Territory
In addition to serving as justices of the peace, Brown and Sibley also played important roles in establishing the Minnesota Territory. In 1848, when Wisconsin was admitted to the Union as a state, no territorial authority remained for the area outside the boundaries of Wisconsin and the state of Iowa, which had been admitted to the Union two years earlier. To remedy this situation, a meeting was organized in August 1848. Brown chaired the proceedings at the so-called Stillwater Convention, where the 62 participants elected Sibley to present a petition to Congress to establish the Minnesota Territory.
By January 15, 1849, Sibley had persuaded the House Committee on Elections to seat him as a delegate to Congress from the Territory of Wisconsin, even though the Territory of Wisconsin no longer existed. Among those voting in favor of seating Sibley as a delegate were a handful of members of Congress who were opposed to slavery “and were happy to see on the political horizon the nucleus of another free state.”12 After some political maneuvering, which resulted in the Whig Party controlling those appointed as the new territorial officials, Minnesota officially became a territory on March 3, 1849.
Provisions for the territorial government were decidedly modest. Governor Ramsey’s home had not yet been completed, so he and his family stayed for the first month with Henry Sibley. The government’s first meeting took place on June 1, 1849, when Ramsey and three other territorial officials met in a small St. Paul hotel room to write a proclamation on a washstand announcing that the territorial government was open for business.
Sibley served in the territorial legislature, which also met in a St. Paul hotel. Though of different political parties, Ramsey and Sibley became fast friends, and their alliance fostered a territorial government that was devoid of divisive partisanship. Attorneys Charles Flandrau and R.R. Nelson served as territorial judges.
Minnesota Becomes a State
In 1857, when Congress passed a bill authorizing the Minnesota Territory to form a state government, Brown, Flandrau, and Sibley all served as delegates to the state constitutional convention. Partisanship emerged for a time, as Democrats and Republicans met separately to draft a proposed constitution. In the end, the two groups reached a compromise on a common text, which was submitted to Congress.13 As Flandrau described it, “both bodies worked diligently on a constitution, and each succeeded in making one so much like the other that, after sober reflection, it was decided that the state could be admitted under either.”14
During the course of debates, many Republican delegates favored deleting the word “white” before “citizens of the United States” in the provision governing the right to vote, as a protest against the United States Supreme Court’s Dred Scott decision.15 Sibley proposed a similar measure to the Democrats, but the proposal received no second. As a compromise, the Republicans agreed to address the right of African Americans to vote through an amendment after adoption of the constitution; the Democrats agreed to make constitutional amendment easier to accomplish. The right to vote was extended to Native American men and metis men through provisions drafted largely by Joseph R. Brown.16 In anticipation of the wave of immigrants soon to come, delegates also extended the right to vote to white men over the age of 21 who declared their intention to become United States citizens and who had resided in the United States for one year.17
One of the other highly debated issues was whether judges should be elected or appointed. Those in favor of appointment explained that relying on elections through the caucus system would not produce the most learned judges: “the best tricksters or the best managers of the caucuses are just as likely to be the nominees of the party as the most learned men in the nation.”18 Others argued that the election of judges would prevent partisan appointments: “the people are much better qualified to select your judges than is the governor. The governor usually selects men belonging to his own political party, while the people very often select them regardless of parties.”19 Those in favor of elections prevailed
Another lively controversy involved the shape of the state. The enabling act passed by Congress set a north-south configuration for the state’s boundaries. This configuration included the northern, Democratic-leaning portion of the territory populated by fur traders, loggers, and miners as well as the southern, Republican-leaning portion of the territory where agriculture was predominant. Many convention delegates from the southern portion of the state, including Charles Flandrau, favored an east-west configuration extending from the St. Croix River west to the Missouri River, and north only so far as present-day Little Falls. After considerable discussion, the north-south shape was adopted, in part because that was Congress’ preference and in part because the north-south boundary was considered an advantage in the state’s efforts to secure federal railroad grants.20
After submission of the constitution and debate in Congress, the state of Minnesota was admitted to the Union on May 11, 1858. Henry Sibley was elected, in a close contest with Alexander Ramsey, to become the state’s first governor. R.R. Nelson, who had been serving on the territorial supreme court, was appointed by President James Buchanan to serve as the first United States District Judge for the District of Minnesota; Charles Flandrau began his service as one of the three elected justices of the Minnesota Supreme Court.
The Minnesota Supreme Court
Justice Flandrau served on the Court with Isaac Atwater, who came to Minnesota from New York in 1850, and Chief Justice Lafayette Emmet, who was born in Ohio and came to Minnesota in 1851. The Court heard arguments in a room in the north capitol building; the justices often conferred together in one of their homes, as there was no official room for judicial conferences. Many of the cases were of first impression and opinions were issued without citations or other references to precedent.
One of the Court’s first high-profile cases involved the issuance of railroad bonds. The state’s constitution prohibited the state from incurring more than $250,000 of debt or from loaning its credit to benefit any individual or corporation. To aid the railroads, in April 1858, voters approved a constitutional amendment allowing up to $5 million in “special bonds of the state” to be issued for the purpose of constructing rail lines. Prior to issuing the bonds, Governor Sibley sought to impose a priority-of-lien condition, but the railroads objected. The Supreme Court majority directed Governor Sibley to issue the bonds without the priority-of-lien condition. Justice Flandrau dissented, arguing it was “a liberality bordering on romance” to issue the bonds without the condition.21 After the bonds were issued, many problems arose when the railroads went bankrupt and defaulted on the bonds with no rail lines completed.
According to Justice Flandrau, the railroad bond issue contributed—in an indirect way—to the nickname for Minnesota as “The Gopher State.”22 The nickname is linked to a political cartoon which was widely circulated in 1857, during debates on the $5 million bonding bill. The cartoon depicted the railroad tycoons as gophers with human heads pulling a Gopher Train. While the gopher cartoon apparently failed to check the public’s enthusiasm for the bonding bill, it did foster enthusiasm for the “Gopher State” nickname, which was then adopted.23
The Capitol Removal Case
Another historically significant case was decided in 1857 by Judge R.R. Nelson. This case involved a petition for mandamus brought by supporters of a bill to move the capitol from St. Paul to St. Peter. Judge Nelson denied the mandamus petition for two reasons: the first was that the territorial legislature had already established the capitol in St. Paul and therefore lacked the authority to change its location under the federal law establishing the territory. The second was that the law presented to the court was invalid because it was a copy, not the original bill.24
Judge Nelson’s opinion does not delve into the background of why the court was presented with a copy of the bill, but a copy was prepared when the chair of the Committee on Engrossed Bills, a legislator and fur trader from the northwest part of the territory named Joe Rolette, decided to hide the original bill at a local bank rather than process it through the committee. Rolette went into hiding himself at a local hotel while the legislative council remained in session, with members eating and sleeping where they could be summoned in case Rolette returned. When Rolette could not be found, a copy of the bill was produced and the process of adopting it completed. Rolette returned with the original bill only after the legislature had adjourned, thus “saving” the capitol for St. Paul.
Adopting Minnesota as Home
These are but a few of the stories of the issues and personalities that shaped Minnesota’s early legal history. There are many more. Justice Flandrau produced over 200 of the Minnesota Supreme Court’s first decisions; Judge Nelson served until 1896 as the sole federal court judge in Minnesota, traveling by horse and by steamboat to hold court sessions in Preston, Duluth, Mankato and Winona. Alexander Ramsey became the second governor of Minnesota in 1859, and when the Civil War began on April 13, 1861, Ramsey was the first to volunteer troops for the Union Army. In 1862, Ramsey, Flandrau, Brown, and Sibley all became involved in the Dakota War and its aftermath, including the trial and execution of 38 Dakota in Mankato.
This year Minnesota marks its 150th year of statehood. To fully do justice to the state’s formative years and its leaders requires far more than this brief review. But recalling even a small part of the life and times of those attorneys and judges who made a difference in Minnesota’s history lends perspective on our past and sheds light on how we might shape our future.
1 I. Atwater, “Territorial Bench of Minnesota-III,” Vol. 7, Magazine of Western History 650, 652 (The Williams Publishing Co. Cleveland, Ohio Nov. 1887-April 1888).
2 Memorial Addresses in Honor of Judge Charles Flandrau, Collections of the Minnesota Historical Society, 1900-1904, Volume X, Part II, 772 (Minnesota Historical Society, Great Western Printing Co. 1905).
3 Rhoda A. Gilman, Henry Hastings Sibley Divided Heart, 30 (Minnesota Historical Society Press 2004) (Sibley Divided Heart).
4 The Dakota lived here for hundreds of years before European-American settlement. In the 1700s, the Ojibwe came from the eastern end of Lake Superior to occupy the northern lakes and woods. See generally Norman K. Risjord, A Popular History of Minnesota, 16-22 (Minnesota Historical Society Press 2005) (A Popular History).
5 Many of those counted as “white” were likely metis, meaning of mixed French or other European and Native American ancestry. Anne J. Aby, ed., The North Star State: A Minnesota History Reader, 86-87 (Minnesota Historical Society Press 2002) (Minnesota History Reader).
6 See Warren Upham, Minnesota Place Names: A Geographical Encyclopedia, 4-5 (3d ed. Minnesota Historical Society Press 2001), available online at http://mnplaces.mnhs.org/upham/.)
7 In recent years, the federal court has ruled the Ojibwe retain the rights set forth in the 1837 Treaty. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).
8 For maps that show the territory ceded in the treaties, see Tales of the Territory, The Treaty Story, at the Minnesota History Center website: www.mnhs.org/. For more about the treaties, including Sibley’s conclusion that the treatment of the Indians by the United States government constituted “one of the foulest blots” on our national reputation, see Robert J. Sheran, “The Law, Courts and Lawyers in the Frontier Days of Minnesota: An Informal Legal History of the Years 1835 to 1865,” 2 Wm. Mitchell L. Rev. 1, 48-51 (1976) (Frontier Days of Minnesota).
9 Frontier Days of Minnesota, at 6.
10 Frontier Days of Minnesota, at 15.
11 Frontier Days of Minnesota, at 11.
12 A Popular History, at 62.
13 The long-hand versions of the Republican and the Democratic constitutions can be viewed on the Minnesota History Center’s website, at www.mnhs.org/.
14 Charles E. Flandrau, The History of Minnesota and Tales of the Frontier, 113 (E.W. Porter 1900) (Tales of the Frontier).
15 William Watts Folwell, Vol. I, A History of Minnesota, 412-413 (Minnesota Historical Society Press 2004, reprint of 1956 edition) (History of Minnesota, Vol I).
16 History of Minnesota, Vol. I, at 412 n.28.
17 Mary Jane Morrison, The Minnesota Constitution: A Reference Guide, 2 (Greenwood Press 2002).
18 Frontier Days of Minnesota, at 38 (citing R. Gunderson, History of the Minnesota Supreme Court, at VIII, at 1-2 (1937)).
20 History of Minnesota, Vol. I, at 405-412.
21 Selby v. Stanley, 4 Minn. 65 (Gil. 34) (1860).
22 Minnesota & Pacific R.R. v. Sibley, 2 Minn. 13 (Gil. 1) (1858); see also Frontier Days of Minnesota, at 45-46 and William Watts Folwell, Vol. II, A History of Minnesota, 37-58 (Minnesota Historical Society Press 1961).
23 Tales of the Frontier, at 242-243.
24 A picture of the gopher cartoon is on the Minnesota Legislature’s website, at www.leg.state.mn.us.
25 The case was decided when Nelson was a territorial judge, his opinion was published in full in the St. Paul Pioneer and Democrat newspaper on July 16, 1857. For more about Judge Nelson, see the Minnesota federal court website, www.mnd.uscourts.gov, at General Information, History of the District Court.
CHERYL HEILMAN is an assistant senior counsel at Complex Settlements in St. Paul and a member of the MSBA Sesquicentennial Task Force. Mankato City Attorney and task force member Eileen Wells, and attorney Charles A. Delbridge of Christensen & Laue in Edina generously provided information for this article.