North Dakota statehood called into question

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North Dakota earned its star on the American flag on Nov. 2, 1889, becoming the 39th or 40th state as it was admitted to the union along with South Dakota — or maybe not.

Grand Forks resident John Rolczynski, 82, said he has discovered a flaw in North Dakota’s Constitution that he believes means the state is technically still a territory more than a century after its statehood was approved by Congress and authorized by the president.

He noticed the flaw on Jan. 31, 1995, and soon set out to notify judges, lawmakers and federal authorities, even sending a letter to President Bill Clinton, and said his concerns were largely ignored.

“It’s very hard to try and get something like this to the point where people will pay attention to it,” he said.

But after years of research and work, residents in the state — or territory, depending on who you ask — will vote next year on a constitutional amendment to clean up the wording that he said has cast a doubt on North Dakota’s status since the end of Dakota Territory.

The flaw

Article XI, Section 4 of the state constitution details the oath each official in the “legislative assembly and judicial department” must take before they start the duties of their office. It’s a section that has gone unchanged since the document was originally drafted.

The problem, Rolczynski said, boils down to one missing word in that sentence — “executive” — which means the state constitution doesn’t specify that the governor and other high ranking officials must take the oath.

He believes that defies the U.S. Constitution. Article VI says senators, representatives and state legislators, as well as “all executive and judicial officers,” must be bound by oath to uphold the Constitution.

That flaw also could be at odds with Section 4 of the Enabling Act of Feb. 22, 1889, which said North Dakota and the three other territories then under consideration for statehood could not draft a state constitution that went against the national document.

It went unnoticed at the time by residents, local officials and national leaders, all of whom voted to grant statehood to North Dakota.

But Rolczynski noticed the missing word in 1995 and worked alone for nearly a decade before he found some help to deal with the 122-year-old mistake.

Getting help

The historian didn’t give up, and in 2003 contacted Sen. Tim Mathern, D-Fargo.

“He reached out to so many people, but I guess people were kind of reluctant to respond to his requests,” Mathern said. “I believe that there are issues sometimes that don’t seem that important but are in fact important to some citizens, and this is one of those, so I responded to him.”

Mathern introduced a bill to put a constitutional amendment on the ballot, but it was defeated by the Legislature. After a few more tries, the bill was able to win the approval of lawmakers during this spring’s session and will next be decided by voters on the November 2012 ballot.

He said the impact of one missing word from the state constitution is questionable, which could be one reason why Rolczynski’s work to address the issue fell on deaf ears in the past.

“I really didn’t believe that this was an issue that was going to place our status as a state or our decisions in jeopardy,” he said. “But John is passionate, John is convinced that this is a fatal flaw and I think sometimes as legislators it behooves us to give people a vehicle to express their citizenship.”

After a Fargo TV station reported on the constitutional issue Tuesday evening, the story of North Dakota’s questionable statehood status made a splash on the Web — appearing on blogs, Gawker and several major news websites, including MSNBC and NPR.

An interview with the Herald on Wednesday was briefly interrupted when Rolczynski received a call at his Grand Forks residence from none other than a curious BBC News reporter.

But Rolczynski, who credits his attention to detail with the skills he learned as a Russian linguist with the U.S. Air Force in the 1950s, isn’t taking a break after his successful push to raise awareness of the mistake.

He’s now taking aim at another section in the constitution that says the Red River forms the entire eastern border of the state. While that’s mostly true, the Bois de Sioux River actually makes up the border for a small portion of the southeastern corner of North Dakota.

Mathern said Rolczynski has discussed a “host” of constitutional issues that he’d like lawmakers to address, including the question of the state’s eastern boundary. But he gave the historian and “amateur constitutional lawyer” some advice when they first started working together in 2003.

“I said to John, ‘Let’s just take on one at a time,’” he said. “Let’s go to the most important one first.”

Johnson reports on local politics. Reach him at (701) 780-1105; (800) 477-6572, ext. 105; or send email to rjohnson@gfherald.com. Follow him on Twitter: @JohnsonReports.

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