1. In this suit, brought in this Court by the United States
against the Texas under Art. III, § 2, Cl. 2 of the Constitution,
the United States is entitled to a decree adjudging
and declaring the paramount rights of the United States as against
Texas in the area claimed by Texas which lies under the Gulf of
Mexico beyond the low water mark on the coast of Texas and outside
the inland waters, enjoining Texas and all persons claiming under
it from continuing to trespass upon the area in violation of the
rights of the United States, and requiring Texas to account to the
United States for all money derived by it from the area after June
23, 1947. Pp. 339 U. S.
2. Even if Texas had both dominium
in and over this marginal belt when she existed
as an independent Republic, any claim that she may have had to the
marginal sea was relinquished to the United States when Texas
ceased to be an independent Nation and was admitted to the Union
"on an equal footing with the existing States" pursuant to the
Joint Resolution of March 1, 1845, 5 Stat. 797. Pp. 339 U. S.
(a) The "equal footing" clause was designed not to wipe out
economic diversities among the several States, but to create parity
as respects political standing and sovereignty. P. 339 U. S.
(b) The "equal footing" clause negatives any implied, special
limitation of any of the paramount powers of the United States in
favor of a State. P. 339 U. S.
(c) Although dominium and imperium are normally separable and
separate, this is an instance where property interests are so
subordinated to the rights of sovereignty as to follow sovereignty.
P. 339 U. S.
(d) If the property, whatever it may be, lies seaward of low
water mark, its use, disposition, management, and control involve
national interests and national responsibilities, thereby giving
rise to paramount national rights in it. United States v.
California, 332 U. S. 19
339 U. S.
(e) The "equal footing" clause prevents extension of the
sovereignty of a State into the domain of political and sovereign
Page 339 U. S. 708
of the United States from which the other States have been
excluded, just as it prevents a contraction of sovereignty which
would reduce inequality among the States. Pp. 339 U. S.
3. That Texas in 1941 sought to extend its boundary to a line in
the Gulf of Mexico 24 marine miles beyond the three-mile limit and
asserted ownership of the bed within that area and in 1947 sought
to extend the boundary to the outer edge of the continental shelf
do not require a different result. United States v. Louisiana,
p. 339 U. S. 699
339 U. S.
4. The motions of Texas for an order to take depositions and for
the appointment of a special master are denied, because there is no
need to take evidence in this case. Pp. 339 U. S. 715
339 U. S.
5. In ruling on a motion by the United States for leave to file
the complaint in this case, 337 U.S. 902, and on a motion by Texas
to dismiss the complaint for want of original jurisdiction, 338
U.S. 806, this Court, in effect, held that it had original
jurisdiction under Art. III, § 2, Cl. 2 of the Constitution, even
though Texas had not consented to be sued. Pp. 339 U. S.
The case and the earlier proceedings herein are stated in the
opinion at pp. 339 U. S.
-712. The conclusion that the United States is
entitled to the relief prayed for is reported at p. 339 U. S.
Page 339 U. S. 709
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This suit, like its companion United States v. Louisiana,
p. 339 U. S. 699
invokes our original jurisdiction under Art. III, § 2, Cl. 2 of the
Constitution and puts into issue the conflicting claims of the
parties to oil and other products under the bed of the ocean below
low-water mark off the shores of Texas.
The complaint alleges that the United States was and is
"the owner in fee simple of, or possessed of paramount rights
in, and full dominion and power over, the lands, minerals and other
things underlying the Gulf of Mexico, lying seaward of the ordinary
low-water mark on the coast of Texas and outside of the inland
waters, extending seaward to the outer edge of the continental
shelf and bounded on the east and southwest, respectively, by the
eastern boundary of the Texas and the boundary between the United
States and Mexico."
The complaint is in other material respects identical with that
filed against Louisiana. The prayer is for a decree adjudging and
declaring the rights of the United States as against Texas in the
above-described area, enjoining Texas and all persons claiming
under it from continuing to trespass upon the area in violation of
the rights of the United States, and requiring Texas to account to
the United States for all money derived by it from the area
subsequent to June 23, 1947.
Texas opposed the motion for leave to file the complaint on the
grounds that the Attorney General was not authorized to bring the
suit and that the suit, if brought, should be instituted in a
District Court. And Texas, like Louisiana, moved to dismiss on the
ground that, since Texas had not consented to be sued, the
Page 339 U. S. 710
had no original jurisdiction of the suit. After argument, we
granted the motion for leave to file the complaint. 337 U.S. 902.
Texas then moved to dismiss the complaint on the ground that the
suit did not come within the original jurisdiction of the Court.
She also moved for a more definite statement or for a bill of
particulars and for an extension of time to answer. The United
States then moved for judgment. These various motions were denied,
and Texas was granted thirty days to file an answer. 338 U.S.
Texas, in her answer, as later amended, renews her objection
that this case is not one of which the Court has original
jurisdiction; denies that the United States is or ever has been the
owner of the lands, minerals, etc., underlying the Gulf of Mexico
within the disputed area; denies that the United States is or ever
has been possessed of paramount rights in or full dominion over the
lands, minerals, etc., underlying the Gulf of Mexico within said
area except the paramount power to control, improve, and regulate
navigation which under the Commerce Clause the United States has
over lands beneath all navigable waters and except the same
dominion and paramount power which the United States has over
uplands within the United States, whether privately or state owned;
denies that these or any other paramount powers or rights of the
United States include ownership or the right to take or develop or
authorize the taking or developing of oil or other minerals in the
area in dispute without compensation to Texas; denies that any
paramount powers or rights of the United States include the right
to control or to prevent the taking or developing of these minerals
by Texas or her lessees except when necessary in the exercise of
the paramount federal powers, as recognized by Texas, and when duly
authorized by appropriate action of the Congress; admits that she
claims rights, title, and interests in said lands, minerals, etc.,
and says that her rights include ownership and the right
Page 339 U. S. 711
to take, use, lease, and develop these properties; admits that
she has leased some of the lands in the area and received royalties
from the lessees, but denies that the United States is entitled to
any of them, and denies that she has no title to or interest in any
of the lands in the disputed area.
As an affirmative defense, Texas asserts that, as an independent
nation, the Republic of Texas had open, adverse, and exclusive
possession and exercised jurisdiction and control over the land,
minerals, etc., underlying that part of the Gulf of Mexico within
her boundaries established at three marine leagues from shore by
her First Congress and acquiesced in by the United States and other
major nations; that, when Texas was annexed to the United States,
the claim and rights of Texas to this land, minerals, etc., were
recognized and preserved in Texas; that Texas continued, as a
State, to hold open, adverse, and exclusive possession,
jurisdiction, and control of these lands, minerals, etc., without
dispute, challenge or objection by the United States; that the
United States has recognized and acquiesced in this claim and these
rights; that Texas, under the doctrine of prescription, has
established such title, ownership, and sovereign rights in the area
as preclude the granting of the relief prayed.
As a second affirmative defense Texas alleges that there was an
agreement between the United States and the Republic of Texas that,
upon annexation, Texas would not cede to the United States, but
would retain, all of the lands, minerals, etc., underlying that
part of the Gulf of Mexico within the original boundaries of the
As a third affirmative defense, Texas asserts that the United
States acknowledged and confirmed the three-league boundary of
Texas in the Gulf of Mexico as declared, established, and
maintained by the Republic of Texas and as retained by Texas under
the annexation agreement.
Page 339 U. S. 712
Texas then moved for an order to take depositions of specified
aged persons respecting the existence and extent of knowledge and
use of subsoil minerals within the disputed area prior to and since
the annexation of Texas, and the uses to which Texas has devoted
parts of the area as bearing on her alleged prescriptive rights.
Texas also moved for the appointment of a special master to take
evidence and report to the Court.
The United States opposed these motions, and, in turn, moved for
judgment asserting that the defenses tendered by Texas were
insufficient in law, and that no issue of fact had been raised
which could not be resolved by judicial notice. We set the case
down for argument on that motion.
We are told that the considerations which give the Federal
Government paramount rights in, and full dominion and power over,
the marginal sea off the shores of California and Louisiana
(see United States v. California, 332 U. S.
; United States v. Louisiana, supra
be equally controlling when we come to the marginal sea off the
shores of Texas. It is argued that the national interests, national
responsibilities, and national concerns which are the basis of the
paramount rights of the National Government in one case would seem
to be equally applicable in the other.
But there is a difference in this case which, Texas says,
requires a different result. That difference is largely in the
pre-admission history of Texas.
The sum of the argument is that, prior to annexation, Texas had
(ownership or proprietary rights) and
(governmental powers of regulation and control)
as respects the lands, minerals and other products underlying the
marginal sea. In the case of California, we found that she, like
the original thirteen colonies, never had dominium over that area.
The first claim to the marginal sea was asserted by the National
Government. We held that protection and control of it
Page 339 U. S. 713
were indeed a function of national external sovereignty. 332
U.S. 332 U. S. 31
The status of Texas, it is said, is different: Texas, when she came
into the Union, retained the dominium
over the marginal
sea which she had previously acquired, and transferred to the
National Government only her powers of sovereignty -- her imperium
-- over the marginal sea.
This argument leads into several chapters of Texas history.
The Republic of Texas was proclaimed by a convention on March 2,
1836. [Footnote 1
] The United
States [Footnote 2
] and other
nations [Footnote 3
recognized it. The Congress of Texas, on December 19, 1836, passed
an act defining the boundaries of the Republic. [Footnote 4
] The southern boundary was
described as follows:
"beginning at the mouth of the Sabine river, and running west
along the Gulf of Mexico three leagues from land, to the mouth of
the Rio Grande. [Footnote
Texas was admitted to the Union in 1845 "on an equal footing
with the original States in all respects whatever." [Footnote 6
] Texas claims that, during the
period from 1836 to 1845, she had brought this marginal belt into
her territory and subjected it to her domestic law, which
recognized ownership in minerals under coastal waters. This the
United States contests. Texas also claims that, under international
law, as it had evolved by the 1840's, the Republic of Texas, as a
sovereign nation, became the owner of the bed and
Page 339 U. S. 714
subsoil of the marginal sea vis-a -vis
Texas claims that the Republic of Texas acquired during that period
the same interest in its marginal sea as the United States acquired
in the marginal sea off California when it purchased from Mexico in
1848 the territory from which California was later formed. This,
the United States contests.
The Joint Resolution annexing Texas [Footnote 7
] provided in part:
"Said State, when admitted into the Union, after ceding to the
United States, all public edifices, fortifications, barracks,
ports and harbors, navy and navy-yards, docks, magazines, arms,
armaments, and all other property and means pertaining to the
belonging to said Republic of Texas, shall
retain all the public funds, debts, taxes, and dues of every kind,
which may belong to or be due and owing said republic, and shall
also retain all the vacant and unappropriated lands lying
within its limits,
to be applied to the payment of the debts
and liabilities of said Republic of Texas, and the residue of said
lands, after discharging said debts and liabilities, to be disposed
of as said State may direct; but in no event are said debts and
liabilities to become a charge upon the Government of the United
The United States contends that the inclusion of fortifications,
barracks, ports and harbors, navy and navy-yards, and docks in the
cession clause of the Resolution demonstrates an intent to convey
all interests of the Republic in the marginal sea, since most of
these properties lie side by side with, and shade into, the
marginal sea. It stresses the phrase in the Resolution "other
property and means pertaining to the public defence." It
Page 339 U. S. 715
argues that possession by the United States in the lands
underlying the marginal sea is a defense necessity. Texas maintains
that the construction of the Resolution both by the United States
and Texas has been restricted to properties which the Republic
actually used at the time in the public defense.
The United States contends that the "vacant and unappropriated
lands" which by the Resolution were retained by Texas do not
include the marginal belt. It argues that the purpose of the
clause, the circumstances of its inclusion, and the meaning of the
words in Texas and federal usage given them a more restricted
meaning. Texas replies that, since the United States refused to
assume the liabilities of the Republic, it was to have no claim to
the assets of the Republic except the defense properties expressly
In the California
case, neither party suggested the
necessity for the introduction of evidence. 332 U.S. 332 U. S. 24
But Texas makes an earnest plea to be heard on the facts as they
bear on the circumstances of her history, which, she says, sets her
apart from the other States on this issue.
The Court, in original actions, passing as it does on
controversies between sovereigns which involve issues of high
public importance, has always been liberal in allowing full
development of the facts. United States v. Texas,
162 U. S. 1
Kansas v. Colorado, 185 U. S. 125
185 U. S.
-145, 185 U. S. 147
Oklahoma v. Texas, 253 U. S. 465
253 U. S. 471
If there were a dispute as to the meaning of documents and the
answer was to be found in diplomatic correspondence, contemporary
construction, usage, international law, and the like, introduction
of evidence and a full hearing would be essential.
We conclude, however, that no such hearing is required in this
case. We are of the view that the "equal footing" clause of the
Joint Resolution admitting Texas to the Union disposes of the
present phase of the controversy.
Page 339 U. S. 716
The "equal footing" clause has long been held to refer to
political rights and to sovereignty. See Stearns v.
Minnesota, 179 U. S. 223
179 U. S. 245
It does not, of course, include economic stature or standing. There
has never been equality among the States in that sense. Some
States, when they entered the Union, had within their boundaries
tracts of land belonging to the Federal Government; others were
sovereigns of their soil. Some had special agreements with the
Federal Government governing property within their borders. See
Stearns v. Minnesota, supra,
pp. 179 U. S.
-245. Area, location, geology, and latitude have
created great diversity in the economic aspects of the several
States. The requirement of equal footing was designed not to wipe
out those diversities, but to create parity as respects political
standing and sovereignty.
Yet the "equal footing" clause has long been held to have a
direct effect on certain property rights. Thus, the question early
arose in controversies between the Federal Government and the
States as to the ownership of the shores of navigable waters and
the soils under them. It was consistently held that to deny to the
States admitted subsequent to the formation of the Union ownership
of this property would deny them admission on an equal footing with
the original States, since the original States did not grant these
properties to the United States, but reserved them to themselves.
See Pollard's Lessee v.
3 How. 212, 44 U. S.
-229; Mumford v.
6 Wall. 423, 73 U. S. 436
Weber v. Harbor
18 Wall. 57, 85 U. S. 65
Knight v. United Land Assn., 142 U.
, 142 U. S. 183
Shively v. Bowlby, 152 U. S. 1
152 U. S. 26
United States v. Mission Rock Co., 189 U.
, 189 U. S. 404
The theory of these decisions was aptly summarized by Mr. Justice
Stone, speaking for the Court, in United States v. Oregon,
295 U. S. 1
295 U. S. 14
follows: [Footnote 8
Page 339 U. S. 717
"Dominion over navigable waters and property in the soil under
them are so identified with the sovereign power of government that
a presumption against their separation from sovereignty must be
indulged in construing either grants by the sovereign of the lands
to be held in private ownership or transfer of sovereignty itself.
See Massachusetts v. New York, 271 U. S.
, 271 U. S. 89
. For that reason,
upon the admission of a state to the Union, the title of the United
States to lands underlying navigable waters within the state passes
to it, as incident to the transfer to the state of local
sovereignty, and is subject only to the paramount power of the
United States to control such waters for purposes of navigation in
interstate and foreign commerce."
The "equal footing" clause, we hold, works the same way in the
converse situation presented by this case. It negatives any
implied, special limitation of any of the paramount powers of the
United States in favor of a State. Texas, prior to her admission,
was a Republic. We assume that, as a Republic, she had not only
full sovereignty over the marginal sea, but ownership of it, of the
land underlying it, and of all the riches which it held. In other
words, we assume that it then had the dominium
in and over this belt which the United States now
claims. When Texas came into the Union, she ceased
Page 339 U. S. 718
to be an independent nation. She then became a sister State on
an "equal footing" with all the other States. That act concededly
entailed a relinquishment of some of her sovereignty. The United
States then took her place as respects foreign commerce, the waging
of war, the making of treaties, defense of the shores, and the
like. In external affairs, the United States became the sole and
exclusive spokesman for the Nation. We hold that, as an incident to
the transfer of that sovereignty, any claim that Texas may have had
to the marginal sea was relinquished to the United States.
We stated the reasons for this in United States v.
332 U. S. 35
, as follows:
"The three-mile rule is but a recognition of the necessity that
a government next to the sea must be able to protect itself from
dangers incident to its location. It must have powers of dominion
and regulation in the interest of its revenues, its health, and the
security of its people from wars waged on or too near its coasts.
And insofar as the nation asserts its rights under international
law, whatever of value may be discovered in the seas next to its
shores and within its protective belt, will most naturally be
appropriated for its use. But whatever any nation does in the open
sea which detracts from its common usefulness to nations or which
another nation may charge detracts from it is a question for
consideration among nations as such, and not their separate
governmental units. What this Government does, or even what the
states do, anywhere in the ocean is a subject upon which the nation
may enter into and assume treaty or similar international
obligations. See United States v. Belmont, 301 U. S.
, 301 U. S. 331
-332. The very
oil about which the state and nation here contend might well become
the subject of international dispute and settlement. "
Page 339 U. S. 719
And so, although dominium
normally separable and separate, [Footnote 9
] this is an instance where property interests
are so subordinated to the rights of sovereignty as to follow
It is said that there is no necessity for it -- that the
sovereignty of the sea can be complete and unimpaired no matter if
Texas owns the oil underlying it. Yet, as pointed out in United
States v. California,
once low-water mark is passed, the
international domain is reached. Property rights must then be so
subordinated to political rights as in substance to coalesce and
unite in the national sovereign. Today the controversy is over oil.
Tomorrow it may be over some other substance or mineral, or perhaps
the bed of the ocean itself. If the property, whatever it may be,
lies seaward of low-water mark, its use, disposition, management,
and control involve national interests and national
responsibilities. That is the source of national rights in it. Such
is the rationale of the California
decision, which we have
applied to Louisiana's case. The same result must be reached here
if "equal footing" with the various States is to be achieved.
Unless any claim or title which the Republic of Texas had to the
marginal sea is subordinated to this full paramount power of the
United States on admission, there is or may be in practical effect
a subtraction in favor of Texas from the national sovereignty of
the United States. Yet neither the original thirteen States
(United States v. California, supra,
pp. 332 U. S. 31
nor California nor Louisiana enjoys such an advantage. The "equal
footing" clause prevents extension of the sovereignty of a State
into a domain of political and sovereign power of the United States
from which the other States
Page 339 U. S. 720
have been excluded, just as it prevents a contraction of
sovereignty (Pollard's Lessee v. Hagan, supra
) which would
produce inequality among the States. For equality of States means
that they are not "less or greater, or different in dignity or
power." See Coyle v. Smith, 221 U.
, 221 U. S. 566
There is no need to take evidence to establish that meaning of
Texas in 1941 sought to extend its boundary to a line in the
Gulf of Mexico twenty-four marine miles beyond the three-mile limit
and asserted ownership of the bed within that area. [Footnote 10
] And, in 1947, she put the
extended boundary to the outer edge of the continental shelf.
irrelevancy of these acts to the issue before us has been
adequately demonstrated in United States v. Louisiana.
other contentions of Texas need not be detailed. They have been
foreclosed by United States v. California
States v. Louisiana.
The motions of Texas for an order to take depositions and for
the appointment of a Special Master are denied. The motion of the
United States for judgment is granted. The parties, or either of
them, may, before September 15, 1950, submit the form of decree to
carry this opinion into effect.
MR. JUSTICE JACKSON and MR. JUSTICE CLARK took no part in the
consideration or decision of this case.
1 Laws, Rep. of Texas, p. 6.
the Resolution passed by the Senate March 1, 1837
(Cong.Globe, 24th Cong., 2d Sess., p. 270), the appropriation of a
salary for a diplomatic agent to Texas (5 Stat. 170), and the
confirmation of a charge d'affaires
to the Republic in
1837. 5 Exec.Journ. 17.
2 Gammel's Laws of Texas 655, 880, 886, 889, 905
for recognition by France, Great Britain, and The Netherlands.
1 Laws, Rep. of Texas, p. 133.
The traditional three-mile maritime belt is one marine league,
or three marine miles, in width. One marine league is 3.45 English
Joint Resolution approved December 29, 1845, 9
Joint Resolution approved March 1, 1845, 5 Stat. 797.
The same idea was expressed somewhat differently by Mr. Justice
Field in Weber v. Board of Harbor Comm'rs, supra,
85 U. S. 65
"Although the title to the soil under the tidewaters of the bay
was acquired by the United States by cession from Mexico, equally
with the title to the upland, they held it only in trust for the
future State. Upon the admission of California into the Union upon
equal footing with the original States, absolute property in, and
dominion and sovereignty over, all soils under the tidewaters
within her limits passed to the State, with the consequent right to
dispose of the title to any part of said soils in such manner as
she might deem proper, subject only to the paramount right of
navigation over the waters, so far as such navigation might be
required by the necessities of commerce with foreign nations or
among the several States, the regulation of which was vested in the
the statement of Mr. Justice Field (then Chief
Justice of the Supreme Court of California) in Moore v.
17 Cal. 199, 218-219.
Act of May 16, 1941, L. Texas, 47th Leg., p. 454.
Act of May 23, 1947, L. Texas, 50th Leg., p. 451.
MR. JUSTICE REED, with whom MR. JUSTICE MINTON joins,
This case brings before us the application of United States
v. California, 332 U. S. 19
Texas. Insofar as Louisiana is concerned, I see no difference
between its situation and that passed upon in the
Page 339 U. S. 721
Texas, however, presents a variation which requires a different
The California case determines, p. 332 U. S. 36
"paramount rights run to the states in inland waters to the
shoreward of the low water mark, the same rationale leads to the
conclusion that national interests responsibilities, and therefore
national rights, are paramount in waters lying to the seaward in
the three-mile belt."
Thus, the Court held, p. 332 U. S. 39
that the Federal Government has power over that belt, an incident
of which is "full dominion over the resources of the soil under
that water area, including oil." But that decision was based on the
premise, pp. 332 U. S. 32
that the three-mile belt had never belonged to California. The
California case points out that it was the United States which had
acquired this seacoast area for the Nation. Sovereignty over that
area passed from Mexico to this country. The Court commented that
similar belts along their shores were not owned by the original
seacoast states. Since something akin to ownership of the similar
area along the coasts of the original states was thought by the
Court to have been obtained through an assertion of full dominion
by the United States to this hitherto unclaimed portion of the
earth's surface, it was decided that a similar right in the
California area was obtained by the United States. The contrary is
true in the case of Texas. The Court concedes that, prior to the
Resolution of Annexation, the United States recognized Texas
ownership of the three-league area claimed by Texas.*
The Court holds immaterial the fact of Texas' original ownership
of this marginal sea area, because Texas was admitted on an "equal
footing" with the other states by the Resolution of Annexation. 5
Stat. 797. The scope of
Page 339 U. S. 722
the "equal footing" doctrine, however, has been thought to
embrace only political rights or those rights considered necessary
attributes of state sovereignty. Thus, this Court has held in a
consistent line of decisions that, since the original states, as an
incident of sovereignty, had ownership and dominion over lands
under navigable waters within their jurisdiction, states
subsequently admitted must be accorded equivalent ownership.
E.g., 44 U. S.
3 How. 212; Martin v. Waddell's
16 Pet. 367. But it was an articulated
premise of the California decision that the thirteen original
states neither had asserted ownership nor had held dominion over
the three-mile zone as an incident of sovereignty.
"Equal footing" has heretofore brought to a state the ownership
of river beds, but never before has that phrase been interpreted to
take away from a newly admitted state property that it had
theretofore owned. I see no constitutional requirement that this
should be done, and I think the Resolution of Annexation left the
marginal sea area in Texas. The Resolution expressly consented that
Texas should retain all "the vacant and unappropriated lands lying
within its limits." An agreement of this kind is in accord with the
holding of this Court that, ordinarily, lands may be the subject of
compact between a state and the Nation. Stearns v.
Minnesota, 179 U. S. 223
179 U. S. 245
The Court, however, does not decide whether or not "the vacant and
unappropriated lands lying within its limits" (at the time of
annexation) includes the land under the marginal sea. I think that
it does include those lands. Cf. Hynes v. Grimes Packing
Co., 337 U. S. 86
337 U. S. 110
At least we should permit evidence of its meaning.
Instead of deciding this question of cession, the Court relies
upon the need for the United States to control the area seaward of
low water because of its international responsibilities. It reasons
that full dominion over the
Page 339 U. S. 723
resources follows this paramount responsibility, and it refers
to the California discussion of the point. 332 U.S. at 332 U. S. 35
But the argument based on international responsibilities prevailed
in the California
case because the marginal sea area was
staked out by the United States. The argument cannot reasonably be
extended to Texas without a holding that Texas ceded that area to
the United States.
The necessity for the United States to defend the land and to
handle international affairs is not enough to transfer property
rights in the marginal sea from Texas to the United States. Federal
sovereignty is paramount within national boundaries, but federal
ownership depends on taking possession, as the California case
holds; on consent, as in the case of places for federal use; or on
purchase, as in the case of Alaska or the Territory of Louisiana.
The needs of defense and foreign affairs alone cannot transfer
ownership of an ocean bed from a state to the Federal Government
any more than they could transfer iron ore under uplands from state
to federal ownership. National responsibility is no greater in
respect to the marginal sea than it is toward every other particle
of American territory. In my view, Texas owned the marginal area by
virtue of its original proprietorship; it has not been shown to my
satisfaction that it lost it by the terms of the Resolution of
I would deny the United States motion for judgment.
the statement in the Court's opinion as to the
chapters of Texas history.
MR. JUSTICE FRANKFURTER. *
Time has not made the reasoning of United States v.
California, 332 U. S. 19
persuasive, but the issue there decided is no longer open for me.
It is relevant, however, to note that, in rejecting California's
Page 339 U. S. 724
ownership in the off-shore oil, the Court carefully abstained
from recognizing such claim of ownership by the United States. This
was emphasized when the Court struck out the proprietary claim of
the United States from the terms of the decree proposed by the
United States in the California case.**
I must leave it to those who deem the reasoning of that decision
right to define its scope and apply it, particularly to the
historically very different situation of Texas. As is made clear in
the opinion of MR. JUSTICE REED, the submerged lands now in
controversy were part of the domain of Texas when she was on her
own. The Court now decides that, when Texas entered the Union, she
lost what she had and the United States acquired it. How that shift
came to pass remains for me a puzzle.
* [REPORTER'S NOTE: This is also the opinion of MR. JUSTICE
FRANKFURTER in No. 12, Original, United States v. Louisiana,
p. 339 U. S.
** The decree proposed by the United States read in part:
"1. The United States of America is now, and has been at all
times pertinent hereto, possessed of paramount rights of
proprietorship in, and full dominion and power over, the lands,
minerals and other things underlying the Pacific Ocean. . . ."
The italicized words were omitted in the Court's decree.
332 U. S. 332
804, 332 U. S.