Should Public Papers

Be Private Property?

Russell W. Fridley

PRESIDENT NIXON'S disclosure that he claimed a tax deduction of $576,000 on vice-presidential papers he donated to the National Archives has refocused attention on a practice that was rooted in the very beginnings of our nation — that of a public official regarding as his own property the papers he created while in office. In the resulting public outcry, historians have joined editorial writers and irate citizens in questioning the propriety of such a tax break for President Nixon. Doubts about the legafity of the tax break were also raised — largely with respect to the dating and execution of a proper deed of Mr. Nixon's gift. However, tbe claiming of such a tax deduction in itself was clearly within the law before the Tax Reform Act of 1969.

Some persons raising objections harked back to a 1969 study ofthe American Historical Association which suggested that the idea that a president's papers became his property after leaving office was "a fingering vestige of the attributes of monarchy, not an appropriate or compatible concept . for the bead of a democratic

state. " Virtually all recent public comment has con­demned the practice of looking upon such papers as pri­vate property for which tax deductions could be claimed — as in the cases of Richard M. Nixon, H u b e r t H. Humphrey, and other public officials.

In claiming the papers as private property, boxvever, these men have the weight of precedent heavily on their side. Presidents since George Washington have treated such documents as their own and kept them upon leav­ing office. In tbe nineteenth century, the federal gov­ernment had to pay nearly $200,000 to get back some of the papers that were in the hands of various descendants of Washington, John and John Quincy Adams, Thomas Jefferson, James Madison, and James Monroe. The heirs of Abraham Lincoln held his papers until his son, Robert

Todd Lincoln, gave them to the Library of Congress with the stipulation that they remain sealed until twenty-one years after his death (he died on July 26, 1926, and the papers were opened in July, 1947).

Tbere is also ample precedent for the restriction that Presidents Nixon and Johnson and Vice-President Hum­phrey attached to their gifts of papers — that they be withheld from the public until tbe men left office or for a specified period of time. (Mr. Humphrey allows access to his papers at the Minnesota Historical Society upon application to him. They will be open without restriction in f991.) Such restrictions, intended to protect the pri­vacy of living persons, have produced further erosion in public acceptance of the validity of a tax deduction. If reasonable restrictions are not alloxved, however, it is unlikely that really significant papers will find their xvay into publicly accessible coflections within a reasonable period of time, no matter what the law may require. As a practical matter, a generous measure of confidentiality must be granted to donors as an incentive for them to preserve and donate tbe real stuff of history.

The papers of most presidents were given to or rounded up by the Library of Congress over a period of about a century and a half Some — notably those of the two Adamses, Millard Fillmore, James Buchanan, and Warren G. Harding — ended up in state or local histori­cal societies, and those of Rutherford B. Hayes are in the Hayes Library, a unit ofthe Ohio Historical Society. The time-honored practice of concentrating presidential pa­pers in the nation's official and largest library in the na­tional capital eventually gave way to putt ing them in presidential libraries around the country. The papers of

THe eoirors pace Spring 1974 37

Herber t Hoover, Franklin D. Roosevelt, Harry S Tru­man, Dxvight D. Eisenhoxver, and Lyndon B. Johnson are noxv housed in such libraries which, built with private funds, xvere turned over upon completion to the National Archives to be operated thereafter at the tax­payers ' expense. The John F. Kennedy papers are temporarily housed in Waltham, Massachusetts.

Minnesotans became emotionally involved in the col­lecting controversy xvhen Senator Humphrey revealed that he had taken a tax deduction of $199, f 53 for some of his papers — including those of bis vice-presidency — that he had donated to the Minnesota Historical Society, Tbe press and tbe public at large reacted favorably to bis gift but strongly against Mr. Humphrey 's tax deduction, although there is no legal question about its legitimacy and timing as there is in the case of President Nixon.

The Humphrey gift, boxvever, should be viexved in tbe perspective of tbe Minnesota Historical Society's practice of gathering papers of public officials — state and national — for more than a century. Major Lawrence Taliaferro, Indian agent (a federal office) at Fort Snelling between f819 and 1839, started the tradition by donat­ing bis remarkable set of dady journals to tbe society in 1867. Minnesotans in public life have been notably generous in following bis example ever since. Lucile M. Kane, tbe society's highly regarded curator of manu­scripts, points out that this public affairs collection has gained momentum periodically xvith the acquisition of a series of landmark collections — the papers of Alexander Ramsey in 1867, Henry H. Sibley in f869, Ignatius Donnelly in 1901, Frank B. Keflogg in 1950, and Hubert H. Humphrey in 1957. Few programs of the society are older. None have been more significant in husbanding the raw material from which history books are written. There is surely a correlation between this patrimony and the strong sense oftheir state's history held by Minneso­tans at large. Tbe value in sheer knowledge and informa­tion about Minnesota and the nation offered by tbe col­lections is incalculable.

In a legal sense all of these collections of public men were considered private. The income tax became a regu­lar and evidently permanent source of revenue for the federal government in 1913. Since then, many taxpayers have looked for "loopholes, " and the government has t r ied to plug them. Beginning somet ime after the enactment of the income tax law and until the Tax Re­form Act of 1969, donors could take tax deductions for charitable contributions, including manuscripts, under frequently changing tax regulations. What is significant is that few donors to the Minnesota Historical Society took a deduct ion. The Minnesota climate has been highly favorable to preserving tbese historical collections intact and resisting the temptation to dfsperse them for sale on the rare manuscript market, xvhere the donors often could realize more financial gain than they could

through tax benefits. A number of private coflectors, to their great credit, also have aided the society in obtain­ing whole collections.

During a November f7, 1973, press conference. President Nixon said that ifit is determined that he is not entitled to a tax deduction for his vice-presidential pa­pers, he would "be glad to have the papers back, and I'll pay the tax, because I think they're worth more" (than the $576,000 tax deduction claimed). If the papers are measured strictly in monetary value, and in spite of re­ports that they were culled to eliminate "sensitive" documents, tbe President probably was right.

Fortunately, Minnesota public officials have exhibi­ted a high degree of probi ty and responsibili ty in Siifeguarding their papers for a public puipose over a long future. They have not shopped around seeking the most advantageous gain. Nor has a tax deduction loss sloxved doxvn gifts to the society since 1969. The critical change in the Tax Reform Act of tbat year (as stated by John J. Kominski, general counsel for the Library of Congress , in an article in tbe Fall, f970, issue of Manuscripts) was "that letters, memoranda, and similar property (or collections thereof) are not to be treated as capital assets if they are held by the taxpayer whose personal efforts created the property or for whom it xvas prepared or by a person xvho received the property as a gift from tbe one xvho created it. Accordingly, these ma­terials are treated as ordinary income property. " In other words, the creators of letters and documents may no longer benefit financially from their donation to a nonprofit organization. Since the gifts of many of the society's donors come xvithin the purview ofthe new laxv, some apprehension xvas felt about its possible impact on acquisitions. To date, boxvever, in contrast to the experi­ences of the Library of Congress and some other major repositories, donors, including Mr. Humphrey, have continued to present materials to the society.

It is true, as the New York Times editorialized on January 8, 1974, tbat " the change in the 1969 tax law is unjust to private citizens, notably authors and artists, whose papers may have considerable value and who produced these papers by their own efforts." But few xvill dispute the morality and wisdom of the pub l ic ' s conclus ion tbat pape r s c r ea t ed at public expense by a public official xvhile in office should be public property and required to be placed in an institu­tion tbat is open to the public. Bills aiming to accompfish this end already have been introduced into Congress. A bill introduced by Senator Birch Bayh of Indiana, for example, xvould require presidents, vice-presidents, and members of Congress to turn over their papers to the National Archives, but the Minnesota Historical Society would much prefer to have tbe bill say that such papers should be placed "in a suitable archival repository whose collections are open to the public."

38 Minnesota History

The principle, as alxvays, is more easily enunciated than executed. Knotty problems remain and must be left to tbe professional judgment ofthe historian and curator. Public and private papers seldom come in neatly sepa­rated cartons. How should the line be drawn between public and private documents? This has always been a gray area and will remain so. Considerable discretion must be left to the collecting institution and to the pro­fessionals working with the coflections.

The xvidespread public discussion of tbe President's tax deduction has been in the public interest. Perhaps it will help correct abuses. It may even reverse a time-honored practice and return to the public xvhat rightly belongs to it — tbe public papers of its officials. Yet, tbe discussion has focused too narrowly on tax loopholes and very little on the good end that this questionable means

encouraged. In this state it aided in preserving precious collections that illuminate the careers, achievements, foibles, and, above all, the times of a truly remarkable group of Minnesota public figures (for example, the Charles Lindberghs, Walter H. Judd, Elmer A. Benson, and Eugene J. McCarthy in addition to others already mentioned) and political movements xvhose national influence has been out of all proportion to tbe state's age and population. Minnesota is indeed fortunate to have bad leaders witb the vision and the sense of history to preserve for future benefit their collective record in pub­lic life. Whoever fashions future policies to govern the control of public papers should heed the Minnesota ex­perience and include incentives that encourage the pres­ervation of such papers for public use and not for private gain.

news & noTes JUNE DRENNING HOLMQUIST was promoted to the new position of assistant director for publications and research for the Minnesota Historical Society on January 1, 1974. Formerly managing editor of publications, she is the first woman to hold an executive-level posi­tion xvithin the society. In her new capac­ity she will supervise all publications and research undertaken by the society's nine divisions.

Mrs. Holmquist, a Phi Beta Kappa graduate ofthe University of Minnesota, joined the society's staff in 1949 as edito­rial assistant. She was named managing editor and head of the publications de­partment in 1956. Since then, the society has issued more than seventy books and pamphlets — xvell over the total number published from its founding in 1849 until she assumed editorial responsibility in 1956.

Russell W. Fridley, society director, in announcing the appointment, said Mrs. Holmquist's promotion not only recognizes her outstanding contributions to the organization but also underscores the significant growth of the society's publishing program in recent years.

Mrs. Jean Brookins, xvho began her association with the society in 19.58, suc­ceeds Mrs. Holmquist as managing editor ofthe publications division.

SIDNEY LENS'S book. The Labor Wars: From the Molly Maguires to the Sitdowns, originally published by Doubleday in 1973, has been released in paperback form by Anchor Press (xii, 440 p, $2.9.5). Lens has xx'ritten about the most bitter, violent, and significant bat­tles in the rise of the American labor movement from the 1870s through the 1930s. Each battle was a milestone in labor's fight for recognition and legality. One of the turning points covered is the Minneapolis truckers' strike of 1934, in­cluded in the chapter, "Impending Vic­tory." Without the advances made in the wake of the bloody 1934 battles, espe­cially the organization of intercity driv­ers. Lens says, the ""present Teamsters' union could not have achieved its posi­tion as the largest and most powerful union in the country.'

IN 1805, xvhen Zebulon M. Pike selected the site for Fort Snelling, the history of Highland Park in St. Paul also began. So writes Donald Empson, assistant refer­ence librarian at the Minnesota Histori­cal Society, in an article, "'Highland-Groveland-Macalester Park; The Old Reserve Toxvnship," in the Fall, 1973, issue oi Ramsey County Hi.story.

Pike purchased land on both sides of the river for the military reservation.

thus beginning a fifty-year association between the fort and the Highland area, xvrites Mr. Empson. In 1820, for exam­ple, a lieutenant and his bride-to-be had to roxv across the Mississippi from Fort Snelling to Highland Park (then part of Michigan Territory) to be married.

The lands on the river's east bank were sold in 1854 (at $1.25 an acre, with ""obvious coflusion"), and in 1858 the area was organized into Reserx'e Toxvn­ship, so named because it had been part of the Fort Snelling Reserx'ation. The township xvas annexed by St. Paul in 1887. But development came slowly: Not until the first two decades of the twen­tieth century xvere the "mile-upon-mile' of houses built north of Randolph Ave­nue, and it xvas not until the 1940s and 1950s that the area south of Randolph became the residential area it is today.

TWO BOOKS recendy brought out by Peguis Publishers of Winnipeg deal xvith the history of the Chippexva or Ojibxvay people in Manitoba. They are of particu­lar interest for the similarities and con­trasts they reveal betxveen Canadian and United States Indian life and govern­ment policies. Chief Peguis and His De­scendants (1973, 86 p. $6,00) is by Albert Edxvard Thompson, xvho is chief of the

Spring 1974 39

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