Most of the posts in this series have focused on the activities of the South Dakota Council of Defense. But it had no inherent mechanism to enforce its legal authority. When “the Russian colonist problem” brought the Council in conflict with religious principles, it turned to the courts, often considered the last bastion for the protection of civil liberties. How would the scales of justice tip?
The Council’s “informal investigation” of four Hutterian Brethren religious corporations determined that their agricultural and related activities meant they were secular, not religious, entities. As a result, the Council filed lawsuits to dissolve and cancel their articles of incorporation. While the Council’s Executive Committee thought it “would be no loss” if the Hutterites left, it was concerned about the property the colonies owned. It filed lis pendens — a notice that any sale of the subject property would be affected by the outcome of a pending lawsuit — in counties where the Hutterites owned property. The Council offered to remove the lis pendens and allow a sale on certain conditions. Among other things, the colony had to invest 2½ % of the sale price in government securities, donate another one-half of one percent to the Red Cross, pay the Council’s costs and attorneys’ fees in the lawsuit, and agree to revocation and cancellation of its charter.
Undoubtedly prompted by mass migration to Canada, more than half the colonies took the offer. By the time the Council released its post-war report, three colonies in one corporation and one each from the other three sold their property. The sales resulted in $20,500 invested in Liberty Bonds and just over $4,000 in Red Cross donations (the equivalent of more than $320,000 and approximately $63,000 today, respectively). Three other colonies had sales pending. Yet some colonies kept up the fight, including the Hutterische Bruder Gemeinde (“Hutterite Brother Community”) in Bon Homme County.
After trial, Beadle County Circuit Court Judge Alva Taylor said the Hutterites “firmly adhere” to their religious precept of withholding all voluntary aid to the prosecution of any war “on the alleged ground that their duty to God is higher, in a moral sense, than their obligation to any human government.” He also found that the Hutterites believed they were pursuing their beliefs by living “a communistic life” and engaging in farming and similar pursuits. Still, in September 1919, Judge Taylor ruled that the corporation was “a misuser” of its charter because it engaged in “secular pursuits and business” and owned real property. He permanently enjoined it and its officers from engaging in secular pursuits. He gave them 90 days to sell all real estate not devoted to religious purposes and to amend the corporate by-laws to exclude any reference to secular business and submit the proposed amendments to him for approval. Otherwise, he would enter an order dissolving the corporation.
The Hutterian Brethren appealed to the South Dakota Supreme Court. In a per curiam (not identifying a specific author) opinion released on December 30, 1922, the Court acknowledged that any alleged law-breaking by the Hutterites
consists solely in a refusal to aid physically or financially in the carrying on of war. They are not shown to have engaged in any unlawful or immoral pursuits or occupations. It is not shown that they have ever harmed the state, society, or any human being, unless we assume that they harm themselves, their children, and the state by following the mode of living adopted by them, and which they believe to be in accordance with the teachings of the New Testament.
It also cited case law holding that the colonists’ refusal to support a war didn’t violate any state or federal law. Moreover, a religious corporation didn’t lose that status as long as any secular acts or transactions “are incident and subordinate to the religious purposes of the church, and so long as they are directed primarily to that purpose.”
So, it appears the Hutterites were freely exercising their religion under the First Amendment and believed any secular activities were in pursuit of their religious beliefs. Yet the Court ruled Hutterische Bruder Gemeinde should be dissolved. It said the corporation’s financial records “compel … the conclusion that the principal business of the corporation is secular, viz. the engaging in farming and other industrial pursuits for the purpose of the sustenance of its colonies; that next in order the business of the corporation is political, viz. the government of its members; and that lastly and secondarily the objects of the corporation are religious[.]” As a result, it should not have been chartered as a religious corporation at the outset. Only Justice Ellison G. Smith — who lost reelection in the general election the month before — dissented, convinced that the group was and always had been a religious corporation.
And the Supreme Court seemed to add insult to injury. It ruled in favor of the State’s cross-appeal of the trial court allowing Hutterische Bruder Gemeinde to remain in existence while disposing of its property. It said the corporation must transfer all of its property to trustees of an unincorporated organization, which would then dispose of it.
The decisions reflected political realities, even though they came after the war ended. Despite the recognized sincerity of the Hutterite beliefs, the scales were tipped against them. The colonists largely spoke German at a time when anything German was perceived as a threat. That was magnified by the Hutterites refusing to participate in the war or even but Liberty Bonds to help fund it. Finally, the Hutterite belief in common ownership was “communistic” as the first Red Scare and the Palmer Raids were commanding public attention. Ultimately, their religious principles were viewed as anti-democratic and anti-American views, something the times couldn’t tolerate.
Naturally the defendant colonies employed counsel and fought to escape the imposing of any restrictions upon their church[.]
Report of the South Dakota State Council of Defense
One of the issues the South Dakota Council of Defense devoted “considerable time” to during its World War I existence was what it called the “Russian Colonist problem.” Evidently, these outsiders claimed their religious convictions forbid participating in or supporting a war. Given the U.S. was at war with Germany, though, the Council said such principles were “subversive” and a “menace to the state and nation.”
Who were the dastardly, treasonous Russian Colonists? According to the Council’s post-war report, it was 17 “so-called Mennonite societies,” mostly located in southeastern South Dakota. Actually, the colonies were part of the “Hutterische Brüder”(Hutterian Brethern), who first settled in South Dakota in 1874. Both Hutterites and Mennonites were Anabaptist sects. Nonviolence was a fundamental precept of the Hutterites, forbidding them from not only participating in military activities but also contributing to war taxes. Daivd Laskin’s The Long Way Home is one of a handful of books telling the story of four conscripted South Dakota Hutterites imprisoned in Alcatraz after refusing to wear uniforms or obey orders. Two were tortured and died. Their antiwar stance was perceived as such a threat that they were the subject of the Council’s second order, the first having set seed corn prices. (The breadth of this perception is reflected in what happened to four South Dakota Hutterites who were conscripted but refused to wear uniforms or obey orders. They were sentenced to 20 years in Alcatraz, where two died after being tortured.)
“Order No. 2″ allowed the Council’s Executive Committee to require anyone associated with the colonies to be examined under oath by it or a county defense council. They could be questioned about “any information within the[ir] knowledge” and required to produce any documents under their control. A formal complaint could initiate such proceedings or the Council could simply decide to start an investigation and order hearings. In either case, a resolution had to be adopted “specifying in general terms the nature of the investigation to be undertaken.” Failure to appear or otherwise comply with the order was punishable by up to a year in jail and/or a $1,000 fine. (Any subpoena to appear before the Council had to be issued by a court. In 1920, the South Dakota Supreme Court upheld a criminal contempt conviction of someone who refused to obey such a subpoena. The case dealt solely with failure to comply with a court’s subpoena, not the legality of the Council’s investigative or other powers.)
In explaining the order, the chair of the Executive Committee, wrote, “These people attracted attention by reason of their avowed hostility to all war activities.” Yet the next sentence recognized the Hutterite stance was “founded upon a fundamental principle of their doctrine, which opposes all war.” Despite that, the Executive Committee launched “an informal investigation” but it wasn’t prompted solely by Hutterite religious tenets.
Each colony was part of one of four Hutterian Brethren religious corporations formed under laws that predated statehood. Their articles of incorporation declared they were formed for the purpose of “promoting, engaging in and carrying on the Christian religion, Christian worship, and religious education and teachings” based on the principle that all property was owned in common. The problem, at least from the Defense Council’s standpoint, was that the activities listed included farming and agriculture and manufacturing articles from agricultural products. According to the Council, this made them secular, not religious, organizations. Moreover, some colonies had indicated they’d sell their property and move to Canada to avoid being forced to support the war. The Council thought it “unfair to permit these people, after prospering under the protection of our laws and government and accumulating vast wealth, simply to depart, taking their accumulated property with them, as soon as the government called for their assistance and support.” (Ultimately, a significant number of Hutterites moved to Alberta, Canada.)
The Executive Committee’s investigation looked into how the colonies operated, how they were governed and what property they owned. The chairman’s report on the examination of a number of the groups’ officers observed: “These people all speak German, although many of them also speak good English. They profess to be governed by the rules, regulations and doctrines embodied in a small volume printed in German and entitled: “Rechenschaft, Unsrer Religion, Lehrer und Glaubens von den Burdern die Mann die Huterischen Nennt.” The only testimony quoted in the report was that while the Hutterites followed the law of the land, they felt their religious beliefs regarding war took precedence over secular law. The Committee said its investigation “established … that these societies in fact had a government of their own, distinct from the laws of the land.” As a result, the Council brought lawsuits to dissolve the four corporations and cancel their articles of incorporation.
The lawsuits and how the Hutterites’ sincerely held religious beliefs fared in court are the subject of my next post.
[The Hutterian Brethren] were willing to take war prices for the products of their farms, they rejoiced in all the advantages offered in America for their prosperity, but they claimed an allegiance to their church doctrines as superior to and independent of any loyalty to the State or Nation.
Report of the South Dakota State Council of Defense
Interesting Reading in the Interweb Tubes
Legal Pleading of the Week
Dealing With the Dangers of Books
- A Canadian school bus driver told an 8-year-old girl she could no longer read books on bus because it risked the safety of other students — and she might poke herself in the eye
If you ever reach total enlightenment while you’re drinking a beer, I bet it makes beer shoot out your nose.
Jack Handey, Deeper Thoughts, All New
Words can be dangerous. You know, “the pen is mightier than the sword” and all that. But entire languages? During World War I, plenty of people thought speaking German was anti-American. Many states, including South Dakota, thought it so unpatriotic that they banned the language.
As I noted previously, the South Dakota Council of Defense started out with no real legal authority; it relied on voluntary cooperation. But it was concerned about German. In February 1918, “after carefully considering all the various phases,” the Council adopted a resolution that teaching German in public schools, colleges and universities was “detrimental to the best interests of the nation in this time of war with the German government, and should be discontinued.” It sent an “earnest request for cooperation” asking school boards and administrators to stop teaching German at the close of the school’s current term or semester.
The Council’s post-war report said there was “[m]uch opposition” to the order in many parts of the state and it received “[e]arnest pleas” that teaching German in the state’s colleges and universities was necessary. That didn’t sway the Council. It said its investigations found German teachers who hadn’t become become naturalized U.S. citizens. The Council recognized there was value to learning a foreign language but “in times of war or peace where the teaching or use of a language carries with it any suggestion of allegiance to or greater admiration and devotion for a country other than America, it at once becomes a National menace.”
In April 1918, the Legislature gave the Council legal authority. In May, the Council adopted “Order No. 4,” banning all German language teaching in public or private schools or private lessons as of June 1. The only exception was for already organized “classes of religious instruction,” where it would be prohibited starting October 1, 1918. The order didn’t stop there. It said German had the “tendency to, and often does excite disturbance of the public peace, and in some instances has produced violence; [and] has a tendency to and does interfere with the public safety[.]” As a result, it also banned using German in “all public and quasi-public meetings, including sermons or public worship,” unless the speaker obtained a permit from the Council. The permit required showing that using German “is necessary and is not detrimental to the best interests of the state and nation.” In other words, a minister had to ask the Council’s permission to perform services or deliver a sermon in German.
In its post-war report, the Council said the order “received more consideration” than anything else it did and it was “besieged by many delegations of prominent pastors of German speaking churches” asking Order No. 4 not apply to religious functions. The report expanded on the Council’s reasoning:
As the Conscription Act went into effect and thousands of our young men were called to the colors[,] an intense feeling toward anything German became manifest among the loyal people, who were bending every energy to win the war, and the use of the enemy’s language became increasingly an offense in many communities in the state. To conserve the public safety, allay suspicion and to afford protection to the loyal citizens of German birth and extraction [the order] prohibiting the use of the enemy’s language in public and quasi-public places was adopted.
And the Council wasn’t done. In July 1918, “Order No. 13″ banned the use of German by three or more people on “any public street, in depots, upon trains, in public places of business and other public or semi-public places within the State.” It was also illegal to use German on any telephone in the state except in “extreme emergency.” Violating the order was punishable by up to a year in jail and/or a fine of up to $1,000 (more than $15,000 today). Again, the Council said speaking German disturbed “the public peace and in some instances has produced violence and is likely to produce future violence.” After the war, the Council said, “The necessity for [the] restrictions named in this order was confined to but a few of the counties, who were benefited by the observance of same.”
Opposition, particularly from churches and the ministry, eventually yielded some results. On August 15, 1918, the Council announced there would be “no modification” of the two orders — and then modified Order No. 4. If the entirety of a church service was in English, the person conducting it “may give a fifteen minute resume of his sermon in the German language so that he may interpret the same for the benefit of the old people who are unable to fully understand the English language.” To help those “old people,” though, required signing a pledge to “faithfully continue to observe in every particular, South Dakota Council Orders Numbers Four and Thirteen … and to actively use my influence as a citizen in supporting all activities which are endorsed by the State and Nation to win the war.”
Both orders were vacated by Gov. Peter Norbeck a month after the Armistice and they have largely faded from memory. And, as noted at the outset, South Dakota wasn’t alone in taking such actions; it occurred nationwide. In fact, Nebraska passed a law in 1919 requiring school be taught in English and forbidding teaching a foreign language to anyone until they’d completed the eighth grade. When it held the law unconstitutional, the U.S. Supreme observed, “Mere knowledge of the German language cannot reasonably be regarded as harmful.”
Yet the fact so many states took such steps illustrates how quickly and easily Americans will, nationwide, disregard or abrogate two of the freedoms we claim to value most — freedom of religion and freedom of speech.
The Church and State should be one in their efforts to Americanize all of our citizenship. “One language, One Flag, One Country,” should be the ideal and aim of all True Americans, regardless of birth and religious training.
Report of the South Dakota State Council of Defense
Interesting Reading in the Interweb Tubes
- Binge Reading Disorder (“When you encounter so many sentences a day, even if they are well constructed, intelligent, and seemingly memorable, how do you actually remember one intelligent thought when a thousand others are clamoring for your attention?”)
- What Does Gun Violence Really Cost? (“Even before accounting for the more intangible costs of the violence, … the average cost to taxpayers for a single gun homicide in America is nearly $400,000. And we pay for 32 of them every single day.”)
- Inside the Kremlin’s hall of mirrors (“These wars of the future would be fought not on the battlefield but in the minds of men.”)
Innovative Legal Defense of the Week
- My client isn’t a terrorist, he just said he was to seduce women
Lawsuit of the Week
- Callifornia lawsuit claims it’s unconstitutional to outlaw prostitution because “consensual, private sexual activity (even for compensation) is a fundamental liberty interest.”
Too many pieces of music finish too long after the end.
As noted in the last post, concern about American “preparedness” after the First World War started led to a variety of government action. One was the formation of the Council of National Defense, which was to coordinate industries and resources “for the national security and welfare.”
Although created in August 1916, the Council wasn’t fully organized until March 3, 1917. On April 2, President Wilson went before Congress and asked it to declare war on Germany to “make the world safe for democracy.” A week later, the Secretary of War, acting as chair of the Council of National Defense, asked the states to create their own councils of defense “with broad powers” to cooperate with the national council. As a result, South Dakota Gov. Peter Norbeck appointed a State Council of Defense, which met for the first time on May 7, 1917. Not only did the Council itself get organized, it appointed a chairman for each county and asked them to immediately create county councils of defense.
As the report prepared by the Council a year or two after the war observed, “There was no law creating a Council, neither had this body any vested authority from legislative enactments. It had no funds with which to operate.” The Council spent much of 1917 on items related to food production, fuel conservation, the workforce, organizing a “Home Guard of the State of South Dakota” for military training, and Liberty Loan bond campaigns. The Council funded its activities by borrowing $200 each from 25 banks in the state in September 1917.
Full legal authority and funding didn’t come the Legislature until April 2, 1918, when a bill creating and enabling a State Council of Defense went into effect. In addition to appropriating $20,000 (approximately $310,000 today), the bill gave the Council wide-ranging power:
During the continuance of a state of war existing between the United States and any foreign nation, such Council shall have the power to do all acts and things not inconsistent with the Constitution or laws of the State of South Dakota, or of the United States, which are necessary or proper for the public safety and for the protection of life and public property, or private property of a character as in the judgment of the Council requires protection[.]
The legislation also specifically authorized the Council to take many other steps by majority vote, including:
- “require a complete registration of the citizens of the state, or of any class of such citizens, at such time or times as it deems expedient.”
- make “orders and rules necessary” to carry out its function as long as they were published in two newspapers of general circulation at least five days before going into effect. Violating, refusing or failing to obey any orders or rules would subject a person to a county jail term of up to a year and/or a fine of up to $1,000 (equivalent to more than $15,000 today).
- require any person to appear before it to be examined under oath “as to any information within the knowledge of such person” and to produce “any writings or documents under his control[.]”
- inquire into the performance of any public official and advise the Governor to remove them from office if the Council believed the public interest requires it.
This is not a comprehensive list of the Council’s authority. And, notably, the act contained nothing requiring the Council’s orders or rules be reviewed or approved at any time by any other entity or official. The only restriction was that its actions be consistent with the federal and state Constitution or laws. I’ll begin exploring what the Council thought was consistent with constitutional rights in the next post.
And in every financial drive many a close-fisted man has opened up his purse strings, owing to the persuasion of the “women folks.”
Foreword, Report of the South Dakota State Council of Defense