Invoking the original jurisdiction of this Court under Art. III,
§ 2 of the Constitution, the United States brought suit against the
States of Louisiana, Texas, Mississippi, Alabama and Florida,
seeking a declaration that it is entitled to exclusive possession
of, and full dominion and power over, the lands, minerals, and
other natural resources underlying the waters of the Gulf of Mexico
more than three geographical miles seaward from the coast of each
State and extending to the edge of the Continental Shelf. It also
asked that the States be enjoined from interfering with the rights
of the United States in that area, and that they be required to
account for all sums of money derived by them therefrom since June
5, 1950.
Held:
1. The Submerged Lands Act grants to each coastal State the
ownership of submerged lands within three geographical miles from
its coast, but no boundary in excess of three miles was fixed
ipso facto for any State. Pp.
363 U. S. 13,
363 U. S.
20-25.
2. The Act preserved the right of each Gulf State to prove
boundaries extending more than three geographical miles (but not
more than three marine leagues) into the Gulf, but each State must
establish the existence of such a boundary in judicial proceedings.
Pp.
363 U. S.
25-26.
3. To satisfy the requirements of the Act, a State's seaward
boundary beyond three geographical miles from its coast must be one
which, by virtue of congressional action, would have been
Page 363 U. S. 2
legally effective to carry, as between the State and the Nation,
submerged land rights under the doctrine of
Pollard's
Lessee v. Hagan, 3 How. 212, as Congress conceived
that rule to have been prior to this Court's decision in
United
States v. California, 332 U. S. 19. The
mere existence of such a boundary prior to the time the State was
admitted to the Union is not alone sufficient. Pp.
363 U. S.
24-36.
4. The fact that, in the field of foreign relations, the policy
of the Executive Branch of the Government may have been to refuse
to assert territorial jurisdiction more than three miles from shore
would not impair the effectiveness of a State's seaward boundary
fixed by Congress more than three miles from shore, so far as the
purely domestic purposes of the Submerged Lands Act are concerned.
Pp.
363 U.S. 30-36.
5. Texas having claimed a maritime boundary at three marine
leagues from her coast when she was an independent republic prior
to admission to the Union, and this boundary having been confirmed
pursuant to the Annexation Resolution of 1845, Texas is entitled,
under the Submerged Lands Act, to a grant of three marine leagues
from her coast for domestic purposes. Pp.
363 U. S.
36-65.
6. Louisiana is entitled to submerged land rights to a distance
no greater than three geographical miles from its coastlines,
wherever those lines may ultimately be shown to be. Pp.
363 U. S.
66-79.
7. Mississippi is not entitled to rights in submerged lands
lying beyond three geographical miles from its coast. Pp.
363 U. S.
79-82.
8. Alabama is not entitled to rights in submerged lands lying
beyond three geographical miles from its coast. P.
363 U. S. 82.
9. As to the States of Louisiana, Mississippi, and Alabama, a
decree will be entered (1) declaring that the United States is
entitled, as against these States, to all the lands, minerals and
other natural resources underlying the Gulf of Mexico more than
three geographical miles from the coast of each such State, that
is, from the line of ordinary low-water mark and outer limit of
inland waters, and extending seaward to the edge of the Continental
Shelf; (2) declaring that none of these States is entitled to any
interest in such lands, minerals and resources; (3) enjoining these
States from interfering with the rights of the United States
therein; (4) directing each such State appropriately to account to
the United States for all sums of money derived therefrom
subsequent to June 5, 1950; and (5) dismissing Alabama's
cross-bill. P.
363 U. S. 83.
Page 363 U. S. 3
10. As to the State of Texas, a decree will be entered (1)
declaring that the State is entitled, as against the United States,
to the lands, minerals and other natural resources underlying the
Gulf of Mexico to a distance of three marine leagues from Texas'
coast, that is, from the line of ordinary low-water mark and outer
limit of inland waters; (2) declaring that the United States is
entitled, as against Texas, to no interest therein; (3) declaring
that the United States is entitled, as against Texas, to all such
lands, minerals and resources lying beyond that area and extending
to the edge of the Continental Shelf; (4) enjoining the State from
interfering with the rights of the United States therein; and (5)
directing Texas appropriately to account to the United States for
all sums of money derived since June 5, 1950, from the area to
which the United States is declared to be entitled. P.
363 U. S. 84.
11. Jurisdiction is retained for such further proceedings as may
be necessary to effectuate the rights herein adjudicated. P.
363 U. S. 84.
12. The motions of Louisiana and Mississippi to take depositions
are denied, without prejudice to their renewal in such further
proceedings as may be had in connection with matters left open by
this opinion. Pp.
363 U. S.
84-85.
13. The same disposition is made of the similar averment in
Alabama's answer. P.
363 U. S. 84, n.
142.
14. Texas' motion for similar relief and for a severance is
rendered moot by the decision as to it. P.
363 U. S. 84, n.
142.
15. The alternative motion of Louisiana, contained in its answer
to the original complaint, to transfer the case as to it to the
United States District Court in Louisiana is denied. P.
363 U. S. 85, n.
143.
Page 363 U. S. 4
MR. JUSTICE HARLAN delivered the opinion of the Court.
The United States, invoking our original jurisdiction under Art.
III, § 2, of the Constitution, brought this suit against the States
of Louisiana, Texas, Mississippi, Alabama,
Page 363 U. S. 5
and Florida, seeking a declaration that it is entitled to
exclusive possession of, and full dominion and power over, the
lands, minerals, and other natural resources underlying the waters
of the Gulf of Mexico more than three geographical miles seaward
from the coast of each State and extending to the edge of the
Continental Shelf. [
Footnote 1]
The complaint also asks that the States be enjoined from
interfering with the rights of the United States in that area, and
that they be required to account for all sums of money derived by
them therefrom since June 5, 1950. [
Footnote 2] The case is now before us on the motions of
the United States for judgment on the pleadings and for dismissal
of Alabama's cross-bill seeking to establish its rights to such
submerged lands and resources within three marine leagues of its
coast.
The controversy is another phase of the more than 20 years'
dispute between the coastal States and the Federal Government over
their respective rights to exploit the oil and other natural
resources of offshore submerged lands. In 1947, this Court held
that, as against California, the United States possessed paramount
rights in such lands underlying the Pacific Ocean seaward of the
low-water mark on the coast of California and outside of inland
waters.
United States v. California, 332 U. S.
19,
332 U. S. 804.
And, on June 5, 1950, the Court, following the principles announced
in the
California case, made like holdings with respect to
submerged lands in the Gulf of Mexico similarly lying off the
coasts of Louisiana and Texas, and directed both States to account
to the United States for all sums derived from natural resources in
those areas after that date.
United States v. Louisiana,
339 U. S. 699;
340 U. S. 340
Page 363 U. S. 6
U.S. 899;
United States v. Texas, 339 U.
S. 707;
340 U. S. 340 U.S.
900. [
Footnote 3]
On May 22, 1953, Congress, following earlier repeated
unsuccessful attempts at legislation dealing with state and federal
rights in submerged lands, [
Footnote 4] passed the Submerged Lands Act, 67 Stat. 29,
43 U.S.C. §§ 1301-1315. By that Act, the United States relinquished
to the coastal States all of its rights in such lands within
certain geographical limits, and confirmed its own rights
Page 363 U. S. 7
therein beyond those limits. The Act was sustained in
Alabama v. Texas, 347 U. S. 272, as
a constitutional exercise of Congress' power to dispose of federal
property, Const.Art. IV, § 3, cl. 2. Since the Act concededly did
not impair the validity of the California, Louisiana, and Texas
cases, which are admittedly applicable to all coastal States, this
case draws in question only the geographic extent to which the
statute ceded to the States the federal rights established by those
decisions.
Page 363 U. S. 8
The purposes of the Submerged Lands Act are described in its
title as follows:
"To confirm and establish the titles of the States to lands
beneath navigable waters within State boundaries and to the natural
resources within such lands and waters, to provide for the use and
control of said lands and resources, and to confirm the
jurisdiction and control of the United States over the natural
resources of the seabed of the Continental Shelf seaward of State
boundaries."
To effectuate these purposes the Act, in pertinent part --
1. relinquishes to the States the entire interest of the United
States in all lands beneath navigable waters within state
boundaries (§ 3, 43 U.S.C. § 1311); [
Footnote 5]
2. defines that area in terms of state boundaries "as they
existed at the time (a) State became a member of the
Page 363 U. S. 9
Union, or as heretofore approved by the Congress," not
extending, however, seaward from the coast of any State more than
three marine leagues [
Footnote
6] in the Gulf of Mexico or more than three geographical miles
in the Atlantic and Pacific Oceans (§ 2, 43 U.S.C. § 1301);
[
Footnote 7]
3. confirms to each State a seaward boundary of three
geographical miles, without
"questioning or in any manner prejudicing the existence of any
State's seaward boundary beyond three geographical miles if it was
so provided by its constitution or laws prior to or at the time
such State became a member of the Union, or if it has
Page 363 U. S. 10
been heretofore approved by Congress"
(§ 4, 43 U.S.C. § 1312); [
Footnote 8] and
4. For purposes of commerce, navigation, national defense, and
international affairs, reserves to the United States all
constitutional powers of regulation and control over the areas
within which the proprietary interests of the States are recognized
(§ 6(a), 43 U.S.C. § 1314); [
Footnote 9] and retains in the United States all rights in
submerged lands lying beyond those areas to the seaward limits of
the Continental Shelf (§ 9, 43 U.S.C. § 1302). [
Footnote 10]
Page 363 U. S. 11
The United States concedes that the statute grants to each of
the defendant States submerged land rights in the Gulf of Mexico to
the extent of three geographical miles, but contends that none of
them is entitled to anything more. The States, conceding that three
leagues is the limit of the statute's grant in the Gulf contend
that each of them is entitled to that much. The wide-ranging
arguments of the parties, reflecting, no doubt, the magnitude of
the economic interests at stake, [
Footnote 11] can be reduced to the following basic
contentions:
The Government starts with the premise that the Act grants
submerged land rights to a distance of more than three miles only
to the extent that a Gulf State can show, in accordance with § 2(b)
of the Act, either that it had a legally established seaward
boundary in excess of three miles at the time of its admission to
the Union or that such a boundary was thereafter approved for it by
Congress prior to the passage of the Submerged Lands Act. It is
contended that the Act did not purport to determine, fix, or change
the boundary of any State, but left it to the courts to ascertain
whether a particular State had a seaward boundary meeting either of
these requirements. The Government then urges, as to any State
relying on its original seaward boundary, that the Act contemplates
as the measure of the grant a boundary which existed subsequent to
a State's admission to the
Page 363 U. S. 12
Union, and not one which existed only prior to admission -- in
other words, a boundary carrying the legal consequences of the
event of admission. It reasons from this that, since a State's
seaward boundary cannot be greater than the national maritime
boundary, and since the national boundary was at all relevant times
never greater than three miles, no State could have had a seaward
boundary in excess of three miles, regardless of what it may have
claimed prior to admission. Further, the Government undertakes to
show that, irrespective of the extent of the national maritime
boundary, none of these States ever had a valid seaward boundary in
excess of three miles, even prior to admission, and that no such
boundary was thereafter approved by Congress for any State.
The States, on the other hand, make several alternative
arguments. At one extreme, they contend that the Submerged Lands
Act
ipso facto makes a three-league grant to all the Gulf
States, or at least that the Act by its terms establishes the
seaward boundary of some States, notably Texas and Florida at three
leagues. Alternatively, they argue that, if the extent of such
state boundaries "at the time" of admission was left to judicial
determination, then the controlling inquiry is what seaward
boundary each State had just prior to admission. If, however, the
Act contemplates a boundary as fixed by the event of admission,
each State contends that Congress fixed for it a three-league Gulf
boundary, and that whatever may have been the extent of the
national maritime boundary at the time is an irrelevant factor.
Florida further contends that, when it was readmitted to the Union
in 1868, Congress approved for it a three-league Gulf boundary.
And, finally, the States argue that, if the national boundary is in
any way relevant, it has at all material times in fact been at
three leagues in the Gulf of Mexico.
Both sides have presented in support of their respective
positions a massive array of historical documents, of which
Page 363 U. S. 13
we take judicial notice, and substantially agree that all the
issues tendered can properly be disposed of on the basis of the
pleadings and such documents.
In this opinion, we consider the issues arising in common
between the Government and all the defendant States, and the
particular claims of Texas, Louisiana, Mississippi, and Alabama,
all of which depend upon their original admission boundaries. The
particular claims of Florida, which involve primarily its
readmission boundary, are considered in a separate opinion.
363 U. S. 363 U.S.
121.
I
THE COMMON ISSUES
A. The Statute On Its Face
The States' contention that the Act
ipso facto grants
them submerged land rights of three leagues in the Gulf may be
shortly answered. The terms of the statute require rejection of
such a construction. Rather, the measure of the grant in excess of
three miles is made to depend entirely upon the location of a
State's original or later Congressionally approved maritime
boundary, subject only to the three-league limitation of the
grant.
We turn next to the question whether, as the States contend, the
first of the two alternative requirements of § 2 -- a boundary
which "existed at the time such State became a member of the Union"
-- is satisfied merely by a showing a preadmission boundary, or
whether, as the Government claims, that requirement contemplates
only a boundary that carries the legal consequences of the event of
admission. While it is manifest that the second requirement of § 2
-- a boundary which was "heretofore approved by the Congress" --
must take into account the effect of Congressional action, it is
not clear from the face of the statute that the same is true of the
first requirement -- a
Page 363 U. S. 14
boundary "as it existed at the time [a] State became a member of
the Union."
The Government argues that, in construing the first requirement
of § 2, the effect of Congressional action cannot be ignored,
because to do so would be to measure the boundary prior to the time
a State became a member of the Union, and "at the time" cannot mean
"prior to the time." However, it might be contended with equal
force that to take account of the effect of Congressional action
would be to measure the boundary after the time the State became a
member of the Union, and "at the time" cannot mean "after the
time." Indeed, if "at the time" were to be taken in a perfectly
literal sense, it could refer only to the timeless instant before
which the consequences of not being a State would obtain, and after
which the consequences of statehood would follow, leaving
unanswered the question whether the effect of Congressional action
was to be considered or not. In short, if the term is to be given
content, it must be read as referring either to some time before or
after the instant of admission, or to both times.
As an aid to construction of "at the time" in § 2, the
Government points to § 4, the last sentence of which states:
"Nothing in this section is to be construed as questioning or in
any manner prejudicing the existence of any State's seaward
boundary beyond three geographical miles if it was so provided by
its constitution or laws
prior to or at the time such
State became a member of the Union, or if it has been heretofore
approved by Congress."
(Emphasis supplied.) It is urged that the disjunctive use of the
terms "prior to" and "at the time" shows that the latter must have
been used to refer to the time after admission, since the
phraseology would otherwise be redundant, and that such meaning
should also be attributed to the same term in § 2,
Page 363 U. S. 15
thereby including the effect of Congressional action. But, as
has already been indicated, "at the time" inherently can also be
taken as referring to the preadmission period, thereby excluding
the effect of such action. And, on that basis, there would be no
redundancy in the phrase "prior to or at the time" if "at the time"
meant immediately before the instant of admission and "prior to"
referred to times substantially prior to admission; yet this would
nonetheless exclude the effect of Congressional action. So far as
the statute itself is concerned, the Government's argument is thus
inconclusive.
Nor do the States' arguments upon the face of the statute
illumine the meaning of "at the time" as used in § 2. They contend
that the meaning of § 2 is explained or clarified by the last
sentence of § 4. According to them, a boundary "existed at the time
[a] State became a member of the Union" (§ 2) if "it was so
provided by its constitution or laws prior to or at the time such
State became a member of the Union. . . ." § 4. Under this view,
whatever the meaning of "at the time," the existence of a state
constitutional or statutory three-league provision prior to
admission would conclusively establish the boundary contemplated by
the Act, irrespective of the character of Congressional action upon
admission. However, this provision appears not in the definitional
or granting sections of the statute (§§ 2 or 3), but in § 4, the
purpose of which is to approve and confirm the boundaries of all
States at three miles, and to negative any prejudice which might
thereby result to claims in excess of three miles. It thus does not
define the grant, but, at most, describes the claims protected from
prejudice by § 4 in terms of their most likely nature. A fair
reading of the section does not point to the conclusion that claims
of this nature were deemed to be self-proving.
Finally, there is no indication on the face of the statute
whether the Executive policy of the United States on the
Page 363 U. S. 16
extent of territorial waters is a relevant circumstance in
ascertaining the location of state seaward boundaries for purposes
of the Act.
Because the statute, on its face, is inconclusive as to these
issues, we turn to the legislative history.
B. The Legislative History
This Court early held that the 13 original States, by virtue of
the sovereignty acquired through revolution against the Crown,
owned the lands beneath navigable inland waters within their
territorial boundaries, and that each subsequently admitted State
acquired similar rights as an inseparable attribute of the equal
sovereignty guaranteed to it upon admission.
Pollard's
Lessee v. Hagan, 3 How. 212. [
Footnote 12] It was assumed by many, and not
without reason, [
Footnote
13] that the same rule would be applied to lands beneath
navigable waters of the marginal sea, that is, beyond low-water
mark and the outer limit of inland waters. However, beginning in
the 1930's, the Federal Government, while conceding the validity of
the
Pollard rule as to inland waters, disputed its
applicability to submerged lands beyond that limit, and claimed
ownership
Page 363 U. S. 17
of those lands for the United States. [
Footnote 14] The controversy centered primarily on the
ownership of the oil-rich submerged lands off the coast of
California. The State maintained that its original constitution,
adopted in 1849, before it was admitted to the Union, established a
seaward boundary three English miles from the coast, [
Footnote 15] that this boundary was
ratified by the Act of Congress admitting it to the Union, and that
therefore, under the
Pollard rule, it was entitled to all
submerged lands lying within three English miles of its coast. This
Court refused so to apply
Pollard, and held in the
California case and the subsequent Louisiana and Texas
cases,
supra, that paramount rights in the marginal sea
are an attribute of national, rather than state, sovereignty,
irrespective of the location of state seaward boundaries.
Meanwhile, an extended series of attempts was underway to secure
Congressional legislation vesting in the States the ownership of
those lands which would be theirs under an application of the
Pollard rule to the marginal sea. [
Footnote 16] It was strongly urged, both before
and after the
Page 363 U. S. 18
California decision, that, because the States had for
many years relied on the applicability of the
Pollard rule
to the marginal sea, it was just and equitable that they be
definitively given the rights which follow from such an application
of the rule, and the
California, Louisiana, and
Texas cases were severely criticized for not having so
applied it. [
Footnote
17]
Page 363 U. S. 19
Thus, virtually every "quitclaim" measure introduced between
1945 and 1953, when the Submerged Lands Act was ultimately enacted,
framed the grant in terms of "lands beneath navigable waters within
State boundaries." This framework was employed because the sponsors
understood this Court to have established, prior to the California
decision, a rule of state ownership itself defined in
Page 363 U. S. 20
terms of state territorial boundaries, whether located at or
below low-water mark. [
Footnote
18] Since, however, none of the cases which had applied that
rule involved lands below low-water mark, and since the
California and subsequent
Louisiana and
Texas cases adopted for such lands a rule which does not
depend upon state boundaries, this Court has never had occasion to
consider the precise nature and method of determining state
territorial boundaries in the open sea, such as would circumscribe
the extent of state ownership of offshore lands under an
application of the
Pollard rule. Because Congress, in the
exercise of its constitutional power to dispose of federal
property, has chosen so to frame its grant, we are now called on to
resolve such questions in light of the Act's history and
purposes.
1.
Confirmation of All Boundaries at Three Miles.
From the very outset, the sponsors of "quitclaim" legislation
believed that all States were entitled to at least three miles of
coastal submerged lands. [
Footnote 19] The earliest bills confirmed to the States
all lands beneath navigable waters within their boundaries, and
defined "lands beneath navigable waters" to include at least all
lands lying within three geographical miles of the coast of each
State. [
Footnote 20]
However, they contained no definition of
Page 363 U. S. 21
"boundaries," and it was apparently assumed that the boundaries
of all States extended at least three miles. [
Footnote 21] Opponents of such legislation
quickly pointed out that, while California based its three-mile
claim on an expressly defined maritime boundary, many, if not most,
of the coastal States lacked such a boundary, [
Footnote 22] and that, therefore, such States
could not avail themselves of the
Pollard rule, the
applicability of which is restricted to areas within the actual
territorial boundaries of the State, even assuming the rule to be
capable of application beyond low-water mark. [
Footnote 23] Proponents of the legislation
alleged it to be
Page 363 U. S. 22
defective in that it granted only those lands beneath navigable
waters which lay within state boundaries, and that this Court, in
the
California case, while not expressly passing on the
question, had cast doubt on whether any of the original States ever
had a boundary beyond its coast. [
Footnote 24] As a result, a new section was added,
substantially similar to the second and third sentences of § 4 of
the present Act (
see note
8 ante), which permitted each State which had not
already done so to extend its boundary seaward three miles and
approved all such extensions theretofore or thereafter made,
without prejudice to any State's claim that its boundary extended
beyond three miles. [
Footnote
25]
It is not entirely clear on what theory Congress thus concluded
that each State owned the submerged lands within three miles of its
coast, irrespective of the existence of an expressly defined
seaward boundary to that distance. It was substantially agreed that
the 13 original Colonies owned the lands within three miles of
their coasts because of their sovereignty and the alleged
international custom which permitted a nation to extend its
territorial jurisdiction that far. [
Footnote 26] Some proponents of the legislation seem to
have concluded that, therefore, not only did the
Page 363 U. S. 23
original States retain such rights after formation of the Union,
but that subsequently admitted States acquired similar rights
within three miles, irrespective of the location of their
boundaries, by the operation of the equal footing clause. [
Footnote 27] It was also suggested
that state ownership within three miles came about by operation of
federal law because of the Federal Government's assumed adherence
to the three-mile limit of territorial waters. [
Footnote 28] While some speakers maintained
that these factors, in effect, gave each State a three-mile
maritime boundary, [
Footnote
29] others eschewed technical reliance on the matter of
boundaries, and thought it sufficient that the
Pollard
rule had always been thought to confer ownership on the lands
within three miles of the coast, and that the States ought to be
restored to the position they believed they had formerly occupied.
[
Footnote 30] And there is
some suggestion
Page 363 U. S. 24
that, since many States, under the Congressional view of
Pollard, had indisputable claims to three miles of
submerged lands, the remainder ought to be treated on a parity
whether or not their claims were technically justified. [
Footnote 31] The upshot of all of
these differing views was the confirmation of each coastal State's
seaward boundary at three geographical miles.
2.
Boundaries Beyond Three Miles.
Whatever may have been the uncertainty attending the relevance
of state boundaries with respect to rights in submerged lands
within three miles of the coast, we find a clear understanding by
Congress that the question of rights beyond three miles turned on
the existence of an expressly defined state boundary beyond three
miles. Congress was aware that several States claimed such a
boundary. Texas throughout repeatedly asserted its claim that, when
an independent republic, its statutes established a three-league
maritime boundary, and that the United States ratified that
boundary when Texas was admitted to the Union, and permitted Texas
to retain its own public lands. [
Footnote 32] Florida repeatedly asserted its claim that,
subsequent to its secession at the time of the Civil War, it framed
a constitution which established a three-league boundary along its
Gulf coast, and that such boundary was ratified when Congress, in
1868, 15 Stat. 73, approved
Page 363 U. S. 25
the State's constitution and readmitted it to the Union.
[
Footnote 33] Louisiana
asserted that the Act of Congress admitting it to the Union in
1812, 2 Stat. 701, fixed for it a three-league maritime boundary by
virtue of the provision which includes within the State "all
islands within three leagues of the coast." [
Footnote 34] And it was suggested that
Mississippi and Alabama might claim boundaries six leagues in the
Gulf because of similar provisions in the Acts admitting them to
the Union. [
Footnote 35]
It was recognized that, if the legal existence of such
boundaries could be established, they would clearly entitle the
respective States to submerged land rights to that distance under
an application of the
Pollard rule to the marginal sea.
Hence, while a three-mile boundary was expressly confirmed for all
coastal States, the right of the Gulf States to prove boundaries in
excess of three miles was preserved. This treatment of the matter
was carried into all the numerous "quitclaim" bills by language
similar to that found in § 4 of the present Act, confirming all
coastal state boundaries at three miles and negating any prejudice
to boundary claims in excess of that. [
Footnote 36] Repeated expressions of the Act's
sponsors make it absolutely clear that no boundary in excess of
three miles was fixed for any State, but that a State would have to
establish the existence of such a boundary in judicial proceedings.
[
Footnote 37]
Page 363 U. S. 26
The many individual expressions of views as to the location of
particular state boundaries -- notably, statements that the effect
of the Act would be to give Texas and Florida three leagues of
submerged land rights [
Footnote
38] -- while undoubtedly representing the sincere beliefs of
the speakers, cannot serve to relieve this Court from making an
independent judicial inquiry and adjudication on the subject, as
contemplated by Congress.
The earlier "quitclaim" bills defined the grant in terms of
presently existing boundaries, [
Footnote 39] since such boundaries would have
circumscribed the lands owned by the States under an application of
Pollard to the marginal sea. However, the sponsors of these
measures soon recognized that present boundaries could be
ascertained only by reference to historic events. The claims
advanced by the Gulf States during consideration of earlier bills
were identical to those subsequently asserted. [
Footnote 40] The theory of those claims, as
we have noted, depended either, as in the cases of Texas and
Florida, upon a constitutional or statutory provision allegedly
ratified by Congressional acquiescence, or, as in the cases of
Louisiana, Mississippi, and Alabama, upon express Congressional
action. Indeed, it could hardly have been contended that
Congressional action surrounding the event of admission was not
relevant to the
Page 363 U. S. 27
determination of present boundaries. Some suggestions were made,
however, that States might, by their own action, have effectively
extended, or be able to extend, their boundaries subsequent to
admission. [
Footnote 41] To
exclude the possibility that States might be able to establish
present boundaries based on extravagant unilateral extensions, such
as those recently made by Texas and Louisiana, [
Footnote 42] subsequent drafts of the bill
introduced the twofold test of the present Act -- boundaries which
existed at the time of admission and boundaries heretofore approved
by Congress. [
Footnote 43]
It is apparent that the purpose of the change was not to alter the
basic theory of the grant, but to assure that the determination of
boundaries would be made in
Page 363 U. S. 28
accordance with that theory -- that the States should be
"restored" to the ownership of submerged lands within their present
boundaries, determined, however, by the historic action taken with
respect to them jointly by Congress and the State. [
Footnote 44] It was such action that the
framers of this legislation conceived to fix the States'
boundaries
Page 363 U. S. 29
against subsequent change without their consent, and therefore
to confer upon them the longstanding equities which the measure was
intended to recognize. [
Footnote
45]
We conclude, therefore, that the States' contention that
preadmission boundaries, standing alone, suffice to meet the
requirements of the statute is not tenable.
3.
The Question of Executive Policy Respecting the
"Three-Mile Limit."
During consideration of the various "quitclaim" bills between
1945 and 1953, the suggestion that international questions might be
raised by the bill constantly recurred. It was asserted that the
United States might be embarrassed in its dealings with other
nations, first, by permitting States to exercise rights in
submerged lands beyond three miles, [
Footnote 49] and, second, by recognizing that the
boundaries of some States might extend beyond three miles from the
coast. [
Footnote 50] The
first objection was laid to rest by the
Page 363 U. S. 31
testimony of Jack B. Tate, Deputy Legal Adviser to the State
Department. Mr. Tate stated that exploitation of submerged lands
involved a jurisdiction of a very special and limited character,
and he assured the Committee that assertion of such a jurisdiction
beyond three miles would not conflict with international law or the
traditional United States position on the extent of territorial
waters. He concluded that, since the United States had already
asserted exclusive rights in the Continental Shelf as against the
world, the question to what extent those rights were to be
exercised by the Federal Government and to what extent by the
States was one of wholly domestic concern within the power of
Congress to resolve. [
Footnote
51]
The second objection, however -- that to recognize by the Act
the possible existence of some state maritime boundaries beyond
three miles would embarrass this country in its dealings with other
nations -- was persistently pressed by the State Department and by
opponents of the bill. The bill's supporters consistently took the
position that, under the
Pollard rule as they understood
it, the extent of a State's submerged land rights in excess of
three miles depended entirely upon the location of its maritime
boundary as fixed by historical events, [
Footnote 52] and that, to the extent a State's
boundary had been so fixed beyond three miles, it constituted an
exception to this country's assumed adherence to the three-mile
limit. The admission of Texas and the readmission of Florida
Page 363 U. S. 32
were repeatedly asserted as instances where Congress had made
exceptions to the three-mile policy, purportedly based on the
shallowness of waters in the Gulf and the alleged Spanish custom of
claiming three leagues of territorial waters. [
Footnote 53]
The State Department, confronted with this argument, tenaciously
maintained that it had never recognized any boundaries in excess of
three miles. [
Footnote 54]
It insisted that, by virtue of federal supremacy in the field of
foreign relations, the territorial claims of the States could not
exceed those of the Nation, and that, therefore, if the bill
recognized the effectiveness of the relied-on historical events to
fix boundaries beyond three miles despite the State Department's
refusal so to recognize them, the bill would violate this country's
consistent foreign policy. The Government now urges in this case a
closely similar contention. It says that the Submerged Lands Act
did not establish any formula for the ascertainment of state
boundaries, but left them to be judicially determined, and that,
because of federal supremacy in the field of foreign relations,
this Court must hold that the Executive policy of claiming no more
than three miles of territorial waters -- allegedly in force at all
relevant times, and evidenced by the State Department's consistent
refusal to recognize boundaries in excess of three miles -- worked
a
Page 363 U. S. 33
decisive limitation upon the extent of all state maritime
boundaries for purposes of this Act. [
Footnote 55]
We agree that the Submerged Lands Act does not contain any
formula to be followed in the judicial ascertainment of state
boundaries, and that, therefore, we must determine, as an
independent matter, whether boundaries, for purposes of the Act,
are to be taken as fixed by historical events such as those pointed
to in the Congressional hearings and debates, or whether they must
be regarded as limited by Executive policy on the extent of
territorial waters, as contended by the Government. However, in
light of the purely domestic purposes of the Act, we see no
irreconcilable conflict between the Executive policy relied on by
the Government and the historical events claimed to have fixed
seaward boundaries for some States in excess of three miles. We
think that the Government's contentions on this score rest on an
oversimplification of the problem.
A land boundary between two States is an easily understood
concept. It marks the place where the full sovereignty of one State
ends and that of the other begins. The concept of a boundary in the
sea, however, is a more elusive one. The high seas, as
distinguished from inland waters, are generally conceded by modern
nations to be
Page 363 U. S. 34
subject to the exclusive sovereignty of no single nation.
[
Footnote 56] It is
recognized, however, that a nation may extend its national
authority into the adjacent sea to a limited distance for various
purposes. For hundreds of years, nations have asserted the right to
fish, to control smuggling, and to enforce sanitary measures within
varying distances from their seacoasts. [
Footnote 57] Early in this country's history, the
modern notion had begun to develop that a country is entitled to
full territorial jurisdiction over a belt of waters adjoining its
coast. [
Footnote 58]
However, even this jurisdiction is limited by the right of foreign
vessels to innocent passage. [
Footnote 59] The extent to which a nation can extend its
power into the sea for any purpose is subject to the consent of
other nations, and assertions of jurisdiction to different
distances may be recognized for different purposes. [
Footnote 60] In a manner of speaking, a
nation which purports to exercise any rights to a given distance in
the sea may be said to have a maritime boundary at that distance.
But such a boundary, even if it delimits territorial waters,
confers rights more limited than a land boundary. It is only in a
very special sense, therefore, that the foreign policy of this
country respecting the limit of territorial waters results in the
establishment of a "national boundary."
Page 363 U. S. 35
The power to admit new States resides in Congress. The
President, on the other hand, is the constitutional representative
of the United States in its dealings with foreign nations. From the
former springs the power to establish state boundaries; from the
latter comes the power to determine how far this country will claim
territorial rights in the marginal sea as against other nations.
Any such determination is, of course, binding on the States. The
exercise of Congress' power to admit new States, while it may have
international consequences, also entails consequences as between
Nation and State. We need not decide whether action by Congress
fixing a State's territorial boundary more than three miles beyond
its coast constitutes an overriding determination that the State,
and therefore this country, are to claim that much territory
against foreign nations. It is sufficient for present purposes to
note that there is no question of Congress' power to fix state land
and water boundaries as a domestic matter. Such a boundary, fully
effective as between Nation and State, undoubtedly circumscribes
the extent of navigable inland waters and underlying lands owned by
the State under the
Pollard rule. Were that rule
applicable also to the marginal sea -- the premise on which
Congress proceeded in enacting the Submerged Lands Act -- it is
clear that such a boundary would be similarly effective to
circumscribe the extent of submerged lands beyond low-water mark,
and within the limits of the Continental Shelf, owned by the State.
For, as the Government readily concedes, the right to exercise
jurisdiction and control over the seabed and subsoil of the
Continental Shelf is not internationally restricted by the limit of
territorial waters.
We conclude that, consonant with the purpose of Congress to
grant to the States subject to the three-league limitation, the
lands they would have owned had the
Pollard rule been held
applicable to the marginal sea, a
Page 363 U. S. 36
state territorial boundary beyond three miles is established for
purposes of the Submerged Lands Act by Congressional action so
fixing it, irrespective of the limit of territorial waters. We turn
now to the task of ascertaining what boundary was was so fixed for
each of the defendant States.
II
THE PARTICULAR CLAIMS OF TEXAS
Texas, the only one of the defendant States which had the status
of an independent nation immediately prior to its admission,
contends that it had a three-league maritime boundary which
"existed at the time [it] became a member of the Union" in 1845.
Whether that is so for the purposes of the Submerged Lands Act
depends upon a proper construction of the Congressional action
admitting the State to the Union.
Texas declared its independence from Mexico on March 2, 1836, 1
Laws, Republic of Texas, 3-7, Vernon's Ann.St.Const. and on
December 19, 1836, the Texan Congress passed an Act to define its
boundaries, which were described in part as
"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, thence up the principal stream of said
river. . . ."
Id., 133. (Emphasis added.)
See diagram at p.
363 U. S. 65.
[
Footnote 61]
Page 363 U. S. 37
In March, 1837, this country recognized the Republic of Texas.
[
Footnote 62] On April 25,
1838, the United States entered into a convention with the Republic
to establish a boundary between the two countries and to provide
for a survey of part of it. [
Footnote 63] On April 12, 1844, President Tyler concluded
a Treaty of Annexation with the Republic, but on June 8, 1844, the
Senate refused to rectify it. [
Footnote 64] On March 1, 1845, President Tyler signed a
Joint Resolution of Congress for the annexation of Texas, which
provided:
"That Congress doth consent that the territory
properly
included within, and rightfully belonging to, the Republic of
Texas, may be erected into a new State, to be called the Texas. . .
. Said State to be formed,
subject to the adjustment by this
government of all questions of boundary that may arise with other
governments. . . . [
Footnote 65]"
(Emphasis added.) Pursuant to this Resolution, the people of
Texas adopted a constitution which was submitted to Congress, and,
by Joint Resolution of December 29, 1845, Texas was admitted to the
Union in accordance with the terms of the previous Joint
Resolution. [
Footnote 66]
The 1836 Texas Boundary Act remained in force up to the time of
admission,
Page 363 U. S. 38
and the State Constitution expressly continued in force from
that time forward all laws of the Republic not repugnant to the
Federal or State Constitution or the Joint Resolution of
Annexation. [
Footnote
67]
The Government, while conceding that Texas continuously asserted
by statute a three-league seaward boundary, contends that at no
time before, during, or after admission did the United States or
any other country recognize the validity of that boundary. It
follows, therefore, the Government says, that, since Texas, upon
entering the Union, became subject to the foreign policy of the
United States with respect to the "three-mile limit," the State's
seaward boundary became immediately and automatically fixed at
three miles. Texas, on the other hand, argues that it effectively
established, and that the United States repeatedly recognized, the
State's three-league boundary before, during, and after admission,
and that therefore such a boundary existed "at the time" of its
admission within the meaning of the Submerged Lands Act. For
reasons already discussed,
ante, p.
363 U. S. 24-36,
we consider that the only relevant inquiry is what boundary was
fixed for the Texas by virtue of the Congressional action admitting
it to the Union in accordance with the terms of the Joint
Resolution of March 1, 1845. This inquiry first takes us back to
some earlier history.
By the Treaty of Paris, signed April 30, 1803, [
Footnote 68] France ceded to the United
States the Louisiana Territory. The extent of the territory thus
conveyed was left uncertain, the description in the Treaty
referring only to a previous treaty by which France had acquired
the territory from Spain, which, in turn, described the area only
as "the colony or province of Louisiana." [
Footnote 69] It was asserted by
Page 363 U. S. 39
some that the territory acquired did not stop at the Sabine
River -- the present boundary between the States of Louisiana and
Texas -- but extended westward to the Rio Grande, so as to include
Texas. [
Footnote 70]
However, by the Treaty of February 22, 1819, between the United
States and Spain, the boundary line between the two countries was
established at the Sabine. [
Footnote 71] Those who had believed that the Louisiana
Territory extended west of the Sabine decried this Treaty as a
breach of faith by the United States in violation of the covenant
in the 1803 Treaty which required the inhabitants of all the
Louisiana Territory to be incorporated as soon as possible into the
Union. [
Footnote 72]
Subsequently, the United States attempted unsuccessfully on several
occasions to acquire the territory west of the Sabine by purchase.
[
Footnote 73]
Meanwhile, Mexico had revolted from Spain, had been recognized
by this country in 1822, and had proclaimed a federal constitution
in 1824. Texas was made part of the compound province of
Coahuila-Texas, with the indication that it would eventually be
given a separate constitution as a sovereign state. After a series
of difficulties with the central government, however, Texas, in
Page 363 U. S. 40
1836, proclaimed its own independence from Mexico. It
immediately sent diplomatic representatives to the United States to
negotiate for annexation, but nothing was consummated at that time.
[
Footnote 74] Shortly
thereafter, it promulgated the 1836 boundary statute referred to
above.
It was against this background that President Tyler negotiated
and sent to the Senate the 1844 Treaty for the annexation of Texas.
That document provided:
"The Republic of Texas . . . cedes to the United States all its
territories, to be held by them in full property and sovereignty. .
. . [
Footnote 75]"
One of the objections made to the Treaty on the floor of the
Senate was that it purported to cede to the United States all the
territory claimed by Texas under her 1836 Boundary Act, to large
parts of which Texas allegedly had no title, those parts assertedly
having always been under the domination and control of Spain and
Mexico. [
Footnote 76] This
objection was countered by several proponents of the Treaty who
insisted that, since it contained no delineation of boundaries and
since the Republic of Texas was referred to by a general
designation, the clause "all its
Page 363 U. S. 41
territories" ceded only that which properly and rightfully
belonged to Texas, its Boundary Act notwithstanding. [
Footnote 77]
The proponents pointed also to a letter of instructions written
by Secretary of State Calhoun to the United States Charge
d'Affaires in Mexico a week after the Treaty was signed, which
enjoined the latter, in making the Treaty known to Mexico,
"to assure the Mexican Government that it is his [the
President's] desire to settle all questions between the two
countries which may grow out of this treaty, or any other cause, on
the most liberal and satisfactory terms, including that of
boundary. . . . [The United States] has taken every precaution to
make the terms of the treaty as little objectionable to Mexico as
possible; and, among others, has left the boundary of Texas without
specification, so that what the line of boundary should be might be
an open question, to be fairly and fully discussed and settled
according to the rights of each, and the mutual interest and
security of the two countries. [
Footnote 78]"
Despite these controversial aspects of the Treaty, it is quite
apparent that its supporters desired to press Texas' boundary
claims to the utmost degree possible. President Tyler, in response
to the Senate's request, transmitted to it a map showing the
western and southwestern boundaries of Texas, and according
generally with the Texas Boundary Act. [
Footnote 79] Senator Walker of Mississippi, while
insisting that the Treaty ceded "only . . . the country embraced
within its [Texas'] lawful boundaries,"
Page 363 U. S. 42
asserted that, in fact, her lawful boundary extended to the Rio
Grande, that it had extended that far when she was ceded away by
the United States in 1819, that the United States had acquiesced in
those boundaries when it recognized Texas in 1837, and that Mexico
had never protested the Convention of 1838 which allegedly
validated that boundary. [
Footnote 80] Senator Breese of Illinois, while assuring
the Treaty's opponents that the boundary was left open to future
determination, avowed that the United States had acknowledged the
Texas boundaries as asserted in her 1836 statute, and that he was
in favor of the recovery not only of the old province of Texas as
it existed in 1803 and 1819, but also "for as much more as the
"republic" of Texas can lawfully claim." [
Footnote 81] Senators Woodbury of New Hampshire and
Buchanan of Pennsylvania, while expressing doubt about the validity
of the Texas Boundary Act to the extent that it claimed portions of
New Mexico, thought it was valid so far as it pressed beyond the
Nueces to the Rio Grande and ought to be maintained. [
Footnote 82]
After the failure of the Treaty, which would have annexed Texas
as a territory of the United States, several proposals were
introduced in the next session of Congress for the annexation of
Texas by a Joint Resolution admitting it immediately as a State.
[
Footnote 83] The doubts
which
Page 363 U. S. 43
had been raised in 1844 as to the validity of certain Texan
pretensions to territory on her western and southwestern frontiers
were reiterated during consideration of the various Resolutions,
and reference was made to the fact that the rejected Treaty had
been assailed as purporting to embrace such territory. [
Footnote 84] In 1844, supporters of
the Treaty had considered the general designation "all its
territories" as ceding only territory which rightfully, properly,
or lawfully belonged to Texas, and as leaving to the Executive the
duty of settling the extent of that territory by amicable
negotiation. [
Footnote 85]
The two clauses of the 1845
Page 363 U. S. 44
Annexation Resolution (
ante, p.
363 U. S. 37),
appear, against this background, to be an express formulation of
precisely the same thing. The first makes it clear that the grant
is of initially undefined scope, governed by the truism that only
"the territory properly included within, and rightfully belonging
to the Republic of Texas" is ceded. The second expressly
contemplates future negotiation to settle the exact extent of such
territory, by making it "subject to the adjustment by this
government of all questions of boundary that may arise with other
governments." In short, it is clear that the "properly" and
"rightfully" clause was intended neither as a legislative
determination that the entire area claimed by Texas was
legitimately hers nor to serve, independently of the "adjustment"
clause, as a self-operating standard for measuring Texas'
boundaries. Rather, the precise fixation of the new State's
boundaries was left to future negotiations with Mexico.
The circumstances surrounding the Resolution's passage make it
clear that this was the understanding of Congress. Congressional
attention was focused primarily on the great political questions
attending annexation -- primarily the extent to which slavery would
be permitted in the new territory and the possibility that
annexation would embroil this country with Mexico -- and the matter
of boundary received little consideration except as it was related
to the larger issues. Public agitation over annexation had become
so great that some bills had proposed annexation virtually in the
abstract, with all details to be worked out later. [
Footnote 86] Although the Resolution, as
ultimately
Page 363 U. S. 45
passed did settle the details of certain matters -- notably
slavery, the Texan debt, and the mode of annexation -- the manifest
purport of it and all the many other annexation bills introduced
was to postpone the fixing of boundaries for the sake of achieving
immediate annexation, and no apparent importance was attached to
the particular verbal formula used to achieve such postponement.
[
Footnote 87] The general
tenor of opposition to annexation
Page 363 U. S. 46
changed from a fear that the cession covered too much to
criticisms of the indefinite treatment of boundary and concern over
whether Texas really owned as much as some supporters asserted.
[
Footnote 88] It is true
that isolated statements were made which seem to indicate that the
speaker thought the Resolutions would admit Texas with the boundary
defined in her 1836 boundary statute, subject to possible
subsequent readjustment. [
Footnote 89] However, read in
Page 363 U. S. 47
context, these statements may have meant no more than that the
United States, in its negotiations with Mexico, would attempt to
sustain the full extent of Texas' declared boundaries, rather than
that those boundaries were in fact proper. Be that as it may, in
view of the overwhelming evidence of Congressional understanding
and of the express language of the Annexation Resolution as
ultimately passed, the conclusion is inescapable that Texas, at
least as to its land area, was admitted with undefined boundaries
subject to later settlement.
While this conclusion appears unavoidable as regards Texas' land
boundaries, a question does exist as to whether it applies also to
the State's seaward boundary. For we are unable to find in the
Congressional debates either on the 1844 Treaty or the 1845
Annexation Resolution a single instance of significant advertence
to the problem of seaward boundaries. Furthermore, a series of
other events manifests a total lack of concern with the problem.
Prior to Texan independence, the United States had entered into
successive treaties with Spain and Mexico, [
Footnote 90] which provided that
"The boundary line between the two countries, west of the
Mississippi, shall begin
on the Gulph of Mexico at the mouth of
the river Sabin, in the sea, continuing north, along the
western bank of that river. . . ."
(Emphasis added.)
Page 363 U. S. 48
Just after Texas had proclaimed its independence from Mexico,
the two countries, on May 14, 1836, concluded "Articles of
Agreement and Solemn Compact," acknowledging Texan independence and
setting its boundary as follows:
"The line shall commence
at the estuary or mouth of the Rio
Grande, on the western bank thereof, and shall pursue the same
bank up the said river. . . . [
Footnote 91]"
(Emphasis added.) Thereafter, a minister was sent to the United
States to seek recognition and broach the subject of annexation.
With respect to the latter, he was instructed on November 18,
1836:
"As regards the boundaries of Texas . . . , [w]e claim and
consider that we have possession to the Rio Bravo del Norte. Taking
this as the basis, the boundary of Texas would be as follows.
Beginning
at the mouth of said River on the Gulf of
Mexico, thence up the middle thereof. . . . [
Footnote 92]"
(Emphasis added.) Yet, a month later, on December 19, 1836, the
Texan Congress passed the Boundary Act which inexplicably, so far
as we can find, provided that the boundary should run along the
Gulf of Mexico at three leagues from land. [
Footnote 93]
Page 363 U. S. 49
Quite in contrast, in the subsequent Convention of 1838 to
establish the boundary between the United States and Texas, Texas
reaffirmed the 1819 and 1828 Treaties with Spain and Mexico
regarding that boundary and agreed to the running and marking
of
"that portion of the said boundary which extends from
the
mouth of the Sabine, where that river enters the Gulph of
Mexico, to the Red river. [
Footnote 94]"
(Emphasis added.) Again, as previously mentioned (
note 79 ante), during its
consideration of the unratified Treaty of April 12, 1844, the
Senate requested President Tyler to transmit any information he
possessed concerning the southern, southwestern, and western
boundaries of Texas. On April 26, 1844, he sent a map and a memoir
by its compiler. The memoir flagrantly misquoted the 1836 Boundary
Act by
Page 363 U. S. 50
describing the Texas boundary as "Beginning at the mouth of the
Rio Grande, thence up the principal stream of said river. . . ."
[
Footnote 95]
The foregoing circumstances make it abundantly plain that, at
the time Texas was admitted to the Union, its seaward boundary,
though expressly claimed at three leagues in the 1836 Texas
Boundary Act, had not been the subject of any specific concern in
the train of events leading to annexation.
Given this state of affairs, we must initially dispose of an
argument made by Texas. The State urges, in effect, that whether or
not its maritime boundary was actually considered by the Congress
or the Executive during the course of the annexation proceedings,
it was incumbent upon the United States to protest or reject in
some manner Texas' claim in this regard, and that failure to do so
constituted in law a validation or ratification of that boundary
claim upon admission. Whatever the merit of this proposition may be
in the abstract, the controlling factor for purposes of this case
must be the terms of the Joint Resolution of Annexation. There is,
indeed, a strong argument that the "properly," "rightfully," and
"adjustment" clauses of that Resolution should be read as applying
only to the land boundaries disputed with Mexico, which give rise
to those qualifications, and that the Resolution was meant to
validate any boundary asserted by Texas without protest. However,
in light of the fact that the language employed in the Resolution
is of general applicability, we should hesitate to limit its effect
by reading into it such an additional unexpressed test respecting
the extent of Texas' boundaries. We think that its language must be
taken as applying to Texas' maritime boundary as well as to its
land boundary.
Page 363 U. S. 51
On this basis, an argument of the Government must now be met. It
is contended that, since Texas was admitted to the Union with its
maritime boundary not yet settled, United States foreign policy on
the extent of territorial waters, to which Texas was admittedly
subject from the moment of admission, automatically upon admission
operated to fix its seaward boundary at three miles. This
contention must be rejected. As we have noted, the boundaries
contemplated by the Submerged Lands Act are those fixed by virtue
of Congressional power to admit new States and to define the extent
of their territory, not by virtue of the Executive power to
determine this country's obligations
via-a-vis foreign
nations.
Ante, p.
363
U.S. 30-36. It may indeed be that the Executive, in the
exercise of its power, can limit the enjoyment of certain incidents
of a Congressionally conferred boundary, but it does not fix that
boundary. If, as in the case of Texas, Congress employs an
uncertain standard in fixing a State's boundaries, we must
nevertheless endeavor to apply that standard to the historical
events surrounding admission.
We are brought back, then, to a two-fold inquiry: first, whether
the three-league maritime boundary asserted by the Republic of
Texas embraced an area which was "properly included within, and
rightfully belonging to" the Republic. Second, whether such a
boundary was ever fixed for the Texas pursuant to the power
reserved by Congress to adjust "all questions of boundary that may
arise with other governments." As we have observed, it is evident
that the first clause, independently of the second, was not
intended to operate as a self-executing standard for determining
the disputed western and southwestern boundaries of Texas. To
attempt to apply that clause as fixing the extent of Texas'
maritime boundary, immediately upon admission to the Union, no less
than in so fixing its land boundaries, would be illusory, at best.
The parties devote considerable
Page 363 U. S. 52
discussion to the validity or invalidity of the asserted
three-league maritime boundary under international law. It is true
that the propriety of a nation's seaward boundary must be viewed in
the context of its obligations
vis-a-vis the family of
nations. But surely the Joint Resolution of Annexation could not
have been meant to import such an elusive inquiry into the
determination of Texas' maritime boundary, especially when that
question was never even considered and when the Resolution was
expressly drawn to leave undefined the land boundaries which did
receive consideration. And we are unable to say that Congress might
have deemed the three-league maritime boundary "proper" or
"rightful" in some other sense. It is necessary, therefore, to look
to other events to ascertain where the Texan maritime boundary was
fixed pursuant to the Joint Resolution of Annexation.
Congress' failure to carry into the Annexation Resolution the
boundaries fixed by the 1836 Texas Boundary Act did not, of course,
foreclose the possibility that the State's boundary might
ultimately be fixed in accordance with that statute. It is
significant in this regard to note the opinions ventured in
Congress on the probable settlement of the boundary with Mexico
which would occur subsequent to annexation. One group asserted that
the Texan claims to the Rio Grande, particularly the portion which
encompassed New Mexico, could not possibly be maintained. [
Footnote 96] But such remarks were
made primarily by opponents of annexation, and were intended as
warnings against assuming that enough land would be included in the
cession to pay the Texan debt or to form free States. Much more
significant than opinions as to where the boundary might ultimately
be fixed are observations made
Page 363 U. S. 53
regarding the basis on which the boundary question might be
pressed against Mexico. Supporters and opponents alike acknowledged
that the United States would probably negotiate on the basis of the
Texan boundaries as declared in her own boundary statute, even
though some parts of that boundary might not be maintainable. Some
thought this was so because those boundaries were, in fact, her
proper and rightful boundaries. [
Footnote 97] Others thought it was so because the United
States, having acquiesced in the Boundary Act after receiving
notice of it, was bound, upon admitting Texas to the Union, to
maintain those claims on her behalf. [
Footnote 98] Whatever the reasons given, it is
Page 363 U. S. 54
clear that Congress, although it purposely refused to settle the
question, anticipated that the Texas Boundary Act should and would
be insisted on to the greatest degree possible in negotiations with
Mexico.
This prediction was borne out by subsequent events. After the
Annexation Resolution had been passed the transmitted to Texas for
its assent, the Mexican army threatened to cross the Rio Grande and
invade Texas. On June 15, 1845, President Polk wrote an informal
and confidential letter to the United States Charge d'Affaires in
Texas which indicated that Polk intended to repel such an invasion
and to maintain the Texan claim at least to the lower portion of
the Rio Grande:
"In the contingency . . . that a Mexican army should cross the
Rio Grande . . . , then, in my judgment,
Page 363 U. S. 55
the public necessity for our interposition will be such that we
should not stand quietly by and permit an invading foreign enemy
either to occupy or devastate any portion of the Texian territory.
Of course, I would maintain the Texan title to the extent which she
claims it to be, and not permit an invading enemy to occupy a foot
of the soil East of the
Rio Grande."
Andrew Donelson Papers (Library of Congress), Vol. 10, folios
2068-2070. Nine days before, Polk had manifested a similar
intention in a letter to Sam Houston, former President of the
Republic of Texas and an influential spokesman for annexation:
"You may have no apprehensions in regard to your boundary. Texas
once a part of the Union and we will maintain all your rights of
territory and will not suffer them to be sacrificed."
Polk Papers (Library of Congress) (1845), Vol. 84.
The attitude of the Executive at this time toward the Texan
boundary is made even more explicit by an account of an interview
between the United States Charge d'Affaires in Texas and Sam
Houston, written by the former to his superior, the Secretary of
State:
"I stated at large the general policy of the United States as
justifying no doubt of the tenacity with which they would maintain
not only the present claim of Texas, but reenforce it with the
preexisting one derived from France in 1803 . . ."
"I brought also to his view the fact that this latter feature of
the proposals did not interfere with the right of Texas to define
her limits as she claimed them, in her statutes -- that the
specification of the Rio Grande as the western boundary would be
proper enough as shewing the extent to which the United States
would maintain her claim as far as it could be
Page 363 U. S. 56
done without manifest injustice to Mexico, and to the portion of
the inhabitants of Mexico that had never yet acknowledged the
jurisdiction of Texas -- that practically the United States would
take the place of Texas, and would be obligated to do all, in this
respect, that Texas could do, were she to remain a separate nation.
[
Footnote 99]"
After Texas consented to annexation and Congress had finally
admitted her to statehood, the Mexican army crossed the Rio Grande
and declared war upon the United States. On May 11, 1846, President
Polk called on Congress to declare war against Mexico. He said in
part:
"Texas, by the final action of our Congress, had become an
integral part of our Union. The Congress of Texas, by its act of
December 19, 1836, had declared the Rio del Norte to be the
boundary of that republic. Its jurisdiction had been extended and
exercised beyond the Nueces. The country between that river and the
Del Norte had been represented in the Congress and in the
convention of Texas; had thus taken part in the act of annexation
itself; and is now included within one of our congressional
districts. Our own Congress had, moreover, with great unanimity, by
the act approved December 31, 1845, recognized the country beyond
the Nueces as a part of our territory by including it within our
own revenue system; and a revenue officer, to reside within that
district, has been appointed, by and with the advice and consent of
the Senate. It became, therefore, of urgent necessity to provide
for the defence of that portion of our country."
H.R.Exec.Doc. No. 60, 30th Cong., 1st Sess. 4, 7.
Page 363 U. S. 57
In a later message to Congress on December 8, 1846, Polk
manifested the same disposition, H.R.Exec.Doc. No. 4, 29th Cong.,
2d Sess. 13-14. And, on December 7, 1847, he explained that the
United States had rejected a treaty proposal by Mexico because
"It required the United States to dismember Texas by
surrendering to Mexico that part of the territory of that State
lying between the Nueces and the Rio Grande, included within her
limits by her laws when she was an independent republic, and when
she was annexed to the United States and admitted by Congress as
one of the States of our Union."
H.R.Exec.Doc. No. 8, 30th Cong., 1st Sess. 9.
However, there is absolutely nothing to indicate that the
Executive, any more than the Congress, was interested in, or was at
all aware of any problem presented by, the seaward boundary of
Texas claimed in its 1836 Boundary Act. The Government urges, by
way of explanation, that the United States had, by this time,
firmly established a policy of claiming no more than three miles of
territorial waters. But the Executive's responsibility for fixing
the Texan boundary derived from a delegation of Congressional power
to admit new States, not from the Executive's own power to fix the
extent of territorial waters. As we have already pointed out, the
two powers can operate independently, and only the first is
determinative in this case. To the extent it may be argued that the
Executive would naturally take account of its own policy toward
territorial waters in fixing the Congressionally mandated boundary,
the data presented to us are utterly devoid of any suggestion that
such was the case. On the contrary, it is evident that the
overwhelming concern of the President and his subordinates was to
maintain to the greatest extent possible the land boundaries
claimed by Texas and disputed with Mexico,
Page 363 U. S. 58
as anticipated by Congress. The settlement of that matter
remained for future events, to which we now turn.
On April 15, 1847, Nicholas P. Trist was appointed Commissioner
to Mexico to negotiate a peace treaty. Among his instructions was a
project of the proposed treaty, which provided:
"The boundary line between the two Republics shall commence in
the Gulf of Mexico
three leagues from land opposite the mouth
of the Rio Grande, from thence up the middle of that river. .
. ."
5 Miller, Treaties and Other International Acts of the United
States of America (1937), 265. (Emphasis added.) This language was
incorporated verbatim into Article V of the Treaty of Guadalupe
Hidalgo as finally signed on February 2, 1848, 9 Stat. 922, which
fixed the boundary between the United States and Mexico from the
Gulf of Mexico to the Pacific coast. [
Footnote 100] While there was considerable
Page 363 U. S. 59
disagreement in the negotiations over the various land
boundaries, the proposals of both parties never departed from the
three-league provision.
See 5 Miller,
op. cit.
supra at 270, 288, 289, 315, 317, 325.
Trist stated in his notes that one object of instructions given
to his predecessor, substantially identical in relevant part to
those given him, was to get Mexico to agree to a boundary which
"would throw within the territory of the United States the
country lying east of the Rio Grande. Or,
Page 363 U. S. 60
as said object stands in said instructions, specifically stated
& expressed, it was the object of prevailing upon Mexico"
"to agree that the line shall be established along the boundary
defined by the act of Congress of Texas, approved December 19,
1836, to-wit: beginning at 'the mouth of the Rio Grande; thence up
the principal stream of said river. . . .' [
Footnote 101]"
While this misquotation of the Texas Boundary Act again
demonstrates total insensitivity to any problem of a seaward
boundary, the passage does indicate that the United States was
attempting to follow the Texas statute in negotiating the boundary.
[
Footnote 102] More
important for the purposes of this case are the circumstances that
the three-league provision was made an express part of the Treaty
of Guadalupe-Hidalgo, that such boundary was reaffirmed five years
later in the Gadsden Treaty of December 30, 1853 [
Footnote 103] and subsequently in a long
line
Page 363 U. S. 61
of international conventions, [
Footnote 104] and that it has never been repudiated.
The Treaty unquestionably established the Rio Grande from New
Mexico to the Gulf as the land boundary not only of the United
States, but also of Texas, since the Executive, acting pursuant to
the power given by Congress to "adjust" Texas' boundaries in
dealings with other nations, pressed that boundary against Mexico
on the theory that it embraced territory rightfully belonging to
the Texas. There is nothing to indicate that the extension of that
boundary three leagues into the Gulf, pursuant to the very same
Boundary Act, was treated on any different basis. The portion of
the boundary extending into the Gulf, like the rest of the line,
was intended to separate the territory of the two countries, and to
recognize that the maritime territory of Texas extended three
leagues seaward.
Whether the Treaty be deemed to constitute an exercise of the
power to adjust the boundaries left unsettled by the 1845 Joint
Resolution of Annexation, or a
post hoc recognition of a
seaward boundary which was actually fixed for Texas upon its
admission in 1845, or a fixation of boundaries which related back
to the time of admission, is of no moment. Although the Submerged
Lands Act requires that a State's boundary in excess of three miles
must have existed "at the time" of its admission, that phrase was
intended, in substance, to define a State's present boundaries by
reference to the events surrounding its admission. As such, it
clearly includes a boundary which was
Page 363 U. S. 62
fixed pursuant to a Congressional mandate establishing the terms
of the State's admission, even though the final execution of that
mandate occurred a short time subsequent to admission.
The Government contends that the Treaty of Guadalupe Hidalgo is
of no significance in this case, because the line drawn three
leagues out to sea was not meant to separate territory of the two
countries, but only to separate their rights to exercise certain
types of "extraterritorial" jurisdiction with respect to customs
and smuggling. We believe the conclusion is clear that what the
line, denominated a "boundary" in the Treaty itself, separates is
territory of the respective countries. No reference to
"extraterritorial" jurisdiction is made in the Treaty, and no such
concept can be gleaned from the context of the negotiations. Being
based on the three-league provision of the 1836 Texas Boundary Act,
which itself denotes a territorial boundary, the obvious and common
sense meaning of the analogous treaty provision is that it
separates the maritime territory of the United States and
Mexico.
The Government relies on certain diplomatic correspondence as
evidencing a subsequent construction of the Treaty contrary to this
conclusion. In 1848, when Great Britain protested the three-league
provision of the Treaty, both the United States and Mexico replied
that the Treaty defined rights only as between the two countries,
and was not intended to impair the rights of any other nation in
the marginal sea. [
Footnote
105] In 1875, Secretary of State Hamilton Fish made a similar
explanation to Lord Derby of England,
Page 363 U. S. 63
but added a new contention that the boundary provision was
"probably" suggested by the Acts of Congress permitting revenue
officials to board vessels bound for the United States within four
leagues of the coast. [
Footnote 106] And, in 1936, after Mexico had asserted a
three-league belt of territorial water along its entire coast, the
United States, in denying that the Treaty gave Mexico such a right,
adopted both rationales relied on in 1875, and in addition
contended that the boundary provision did recognize the territory
of the two countries as extending three leagues from the coast, but
only in the "one area" adjacent to the international boundary.
[
Footnote 107] It seems
evident from the
Page 363 U. S. 64
shifting and uncertain grounds upon which these pronouncements
relied that they should be taken as reflecting no more than
after-the-fact attempts to limit the effect of a provision which
patently purported to establish a three-league territorial
boundary, so as to bring it into accord with this country's
international obligations. Undoubtedly the Executive has the right
to limit the effect to be accorded a treaty provision in its
dealings with other countries. But where, as here, that Treaty
touches upon relationships between the Nation and a State created
pursuant to a Congressional mandate, the original purport of the
Treaty must control, and the dealings of the Executive with other
nations cannot affect the State's rights in any way as a domestic
matter.
We conclude, therefore, that, pursuant to the Annexation
Resolution of 1845, Texas' maritime boundary was established at
three leagues from its coast for domestic purposes. Of course, we
intimate no view on the effectiveness of this boundary as against
other nations. Accordingly, Texas is entitled to a grant of three
leagues from her coast under the Submerged Lands Act.
Page 363 U. S. 65
BOUNDARIES CLAIMED BY TEXAS*
image:a
* United States Department of the Interior, Boundaries, Areas,
Geographic Centers, and Altitudes of the United States and the
Several States, Second Edition, 1932, Edward M. Douglas, Editor,
Geological Survey Bulletin 817, p. 170.
Page 363 U. S. 66
III
THE PARTICULAR CLAIMS OF LOUISIANA
Louisiana's claims, like those of Texas, are based on the
contention that it had a three-league maritime boundary which
existed "at the time" it was admitted to the Union, and must be
judged by the same standards. The Act of Congress admitting the
State to the Union in 1812 [
Footnote 107a] described the new State's boundaries as
follows:
"beginning at the mouth of the river Sabine; thence, by a line
to be drawn along the middle of said river, including all islands
to the thirty-second degree of latitude; thence, due north, to the
northernmost part of the thirty-third degree of north latitude;
thence, along the said parallel of latitude, to the river
Mississippi; thence, down the said river, to the river Iberville;
and from thence, along the middle of the said river, and lakes
Maurepas and Ponchartrain,
to the gulf of Mexico; thence,
bounded by the said gulf, to the place of beginning, including all
islands within three leagues of the coast. . . ."
(Emphasis added.) Louisiana claims that the concluding clause
"including all islands within three leagues of the coast" should be
read to mean that Congress fixed as the State's seaward boundary a
line three leagues from its coast, and that such a reading is
supported both by the State's preadmission history and by
subsequent events. The Government, on the other hand, insists that
the phrase includes only the islands themselves lying within three
leagues of the coast, and not all water within that distance as
well. [
Footnote 108]
Page 363 U. S. 67
1. The Act of Admission on Its Face.
The language of the Act itself appears clearly to support the
Government's position. The boundary line is drawn down the middle
of the river Iberville "
to the Gulf of Mexico," not
into it for any distance. The State is thence to be
bounded "
by the said gulf," not by a line located three
leagues out in the Gulf, "to the place of beginning," which is
described as "
at the mouth of the river Sabine," not
somewhere beyond the mouth in the Gulf. (Emphasis added.) And while
"all islands" within
Page 363 U. S. 68
three leagues of the coast were to be included, there is no
suggestion that all waters within three leagues were to be embraced
as well. In short, the language of the Act evidently contemplated
no territorial sea whatever.
Similar language was employed in the Treaty of Paris of
September 3, 1783, by which Great Britain recognized the
independence of the United States. [
Footnote 109] After describing the boundary of the
United States from the mouth of the St. Croix River in the Bay of
Fundy to the mouth of the St. Mary's River between Georgia and
Florida, the parties added: "comprehending all islands within
twenty leagues of any part of the shores of the United States. . .
." In the light of Jefferson's observation, only 10 years later,
that national claims to control of the sea beyond approximately 20
miles from the coast had not therefore been generally recognized
among maritime powers, [
Footnote 110] his accompanying proposal that a
three-mile limit should be placed upon the extent of territorial
waters, [
Footnote 111]
and subsequent American and British policy in this regard,
see note 54
supra, it is hardly conceivable that this provision of the
Treaty was intended to establish United States territorial
jurisdiction over all waters lying within 20 leagues (60 miles) of
the shore. [
Footnote 112]
No reason appears for reading
Page 363 U. S. 69
the Louisiana statute differently. The conclusion that language
claiming all islands within a certain distance of the coast is not
meant to claim all the marginal sea to that distance is further
confirmed by the Act defining the boundaries of Georgia, [
Footnote 113] which claims three
miles of marginal sea, but all islands within 20 leagues of the
coast. That Act provides:
"along the middle of [the St. Mary's] river to the Atlantic
Ocean, and extending therein three English miles from low-water
mark; thence running in a northeasterly direction and following the
direction of the Atlantic coast to a point opposite the mouth, or
inlet, of said Savannah River; and from thence to the mouth or
inlet of said Savannah River, to the place of beginning; including
all the lands, waters, islands, and jurisdictional rights within
said limits, and also all the islands within 20 marine leagues of
the seacoast."
Nothing in the case of
Alaska Pacific Fisheries v. United
States, 248 U. S. 78, tends
toward a contrary construction. The Court there held that an Act of
Congress designating as an Indian reservation "the body of lands
known as Annette Islands" included the intervening and surrounding
waters and submerged lands, which were inland waters admittedly
under the control of the United States, whether actually part of
the reservation or not. The Court, construing the statute in light
of the Indians' historic use of these waters as fishing grounds,
merely concluded that Congress intended to include in the area
reserved the waters and waterbed, as well as the islands, referring
to both "as a single body of lands."
Id., 248 U. S. 89.
The construction here contended for by Louisiana would,
Page 363 U. S. 70
in contrast, sweep within the State's jurisdiction waters and
submerged lands which bear no proximate relation to any islands,
and which would otherwise be part of the high seas.
Louisiana also contends, relying on
United States v.
Texas, 162 U. S. 1;
Louisiana v. Mississippi, 202 U. S.
1, that this Court has already determined that its
boundary includes three leagues of marginal sea. The
Texas
case, however, involved only the question whether Greer County, in
the northwest part of the State, was properly a part of Texas. And
even if that case had effectively established a three-league
maritime boundary for Texas, which quite evidently it did not, that
would not establish a similar boundary for Louisiana.
The
Mississippi case involved only the issue of the
boundary between Louisiana and Mississippi. Louisiana relies on the
holding of the Court that, because the eastern boundary of
Louisiana was a water boundary along the middle of the river
Iberville, extending to the Gulf, it went on to include a
deep-water sailing channel in the Gulf adjacent to Mississippi. It
also relies on a rough map included in the Court's opinion showing
a line drawn all the way around the State's coast at some distance
in the Gulf. There is, however, no indication whatever that the
line so indicated bore any relation to the three-league provision
in the Louisiana Act of Admission. Furthermore, if there could be
any doubt that only the portion of the water boundary adjacent to
Mississippi was considered by the Court, it is dispelled by the
Court's statement that
"Questions as to the breadth of the maritime belt or the extent
of the sway of the riparian states require no special consideration
here. The facts render such discussion unnecessary."
Id., 202 U. S. 52.
See also United States v. California, supra, at
332 U. S.
37.
Page 363 U. S. 71
2. Preadmission History.
Preliminarily, it should be observed that, in light of what has
already been said, pp.
363 U. S. 24-30,
Louisiana's preadmission history is relevant in this case only to
the extent that it aids in construing the Louisiana Act of
Admission. The thrust of the State's argument on this score is that
the boundaries fixed by the Act of Admission comprised the entire
area acquired by the United States from France through the
Louisiana Purchase, effected by the Treaty of Paris in 1803; that
the extent of this area traces back, through cessions by France to
Spain in 1762 and Spain to France in 1800, to what was first
claimed by France in 1682; and that such area originally extended
some 120 miles into the Gulf of Mexico, and, in any case, by virtue
of other events at least three leagues into the Gulf.
For reasons now to be discussed, we think that this historical
thesis is not borne out by any of the documents or events on which
Louisiana relies, but that, to the contrary, what has been shown us
leads to the conclusion that Louisiana's preadmission territory,
consistently with the Act of Admission, stopped at its coast, and
did not embrace any marginal sea.
1. The area which includes the present Louisiana was first
claimed for France by La Salle in 1682, extending southward
"as far as [the Mississippi's] . . . mouth in the sea, or Gulf
of Mexico, about the twenty-seventh degree of the elevation of the
North Pole. . . . [
Footnote
114]"
It is apparent from the face of La Salle's proclamation that it
was the mouth of the Mississippi which defined
Page 363 U. S. 72
the southerly limit of his claim. His expression of belief that
the river mouth was at "about" the 27th parallel does not indicate
an intent to claim to that parallel, which is, in fact, some 120
miles south of the Mississippi's mouth. In any event, the
proces-verbal of Jacques de la Metairie, notary of the La
Salle expedition, [
Footnote
115] shows that the proclamation was issued after the mouth of
the Mississippi had been reached and the party had returned
upstream only far enough to find solid ground for the erection of a
monument, and that La Salle then thought, mistakenly, in fact, that
they were at about the 27th parallel. Other documents also indicate
that the river mouth defined the extent of the claim, and that the
territory included no marginal sea whatever. [
Footnote 116]
2. By a secret Treaty executed at Fontainebleau on November 3,
1762, France ceded to Spain "all the country known under the name
of Louisiana, as well as New Orleans and the island in which the
place stands." [
Footnote
117] By the secret Treaty of San Ildefonso, signed October 1,
1800, Spain retroceded the "colony and province of Louisiana" to
France. [
Footnote 118]
Certainly there is nothing on the face of
Page 363 U. S. 73
either of these Treaties to indicate that France or Spain
claimed any territorial sea.
3. Louisiana argues, however, that certain treaties between
France, Spain, and other nations evidence such an intent. Four of
these treaties concern the right of the French to fish within
certain distances of the coasts of the British possessions in North
America, varying from three to 30 leagues. The relevant portions do
not relate to French or Spanish territory at all. [
Footnote 119] In another, Great Britain
undertook not to permit its subjects to navigate or fish within 10
leagues of coasts occupied by Spain "in the Pacific Ocean, or in
the South Seas," so as to prevent illicit trade with Spanish
settlements. [
Footnote
120] The Treaty does not relate to the area in question, and,
far from being an assertion of a territorial claim by Spain,
imposed an obligation of a limited nature on Great Britain alone.
The same reasoning applies to another of these treaties, the Treaty
between Spain and Tripoli, signed September 10, 1794, prohibiting
the capture of any vessel within 10 leagues from coasts of the
dominions of Spain. [
Footnote
121] Reliance is also placed on an ordinance promulgated by
Philip II of Spain in October, 1565, asserting rights within the
visual horizon of the coasts of Spain and its possessions.
[
Footnote 122] It may be
questioned whether this ordinance
Page 363 U. S. 74
even constituted an assertion of territorial jurisdiction as it
is known today, especially in view of the fact that the concept of
the territorial sea did not arise in international law until after
this country achieved its independence.
See United States v.
California, supra, 332 U. S. 32-33.
Even if it did, the ordinance can hardly be taken as applying to a
territory not acquired by Spain until 200 years later, or as
affecting the construction of the Act admitting Louisiana to the
Union 250 years later. [
Footnote 123]
4. By the Treaty of Paris, signed April 30, 1803, France ceded
to the United States the Louisiana Territory with all its rights
and appurtenances
"as fully and in the same manner as they have been acquired by
the French Republic, in virtue of the above-mentioned treaty
[Treaty of San Ildefonso, Oct. 1, 1800], concluded with his
Catholic Majesty,"
including "the adjacent islands belonging to Louisiana."
[
Footnote 124] To show
that the Act admitting Louisiana to the Union must be construed as
referring to the Union must be be construed as referring directly
to this Treaty, Louisiana relies on Article III of the Treaty,
which required the United States to admit "the ceded territory" to
statehood as soon as possible. But, since the historic documents to
which our attention has been called fail to show that the ceded
territory included any territorial sea, taking the Treaty as
defining the scope of the Act of Admission only confirms the view
that Louisiana's maritime boundary was fixed at, and not somewhere
in, the Gulf of Mexico.
Page 363 U. S. 75
5. Louisiana also asserts that, about the time of its admission,
the United States was claiming three leagues of territorial waters
in the Gulf, and that the Act of Admission was framed with
reference to that claim. However, from the great variety of
documentation presented by the parties, the most that could
possibly be said is that the United States, contrary to the
Government's contention, had not unequivocally asserted the
applicability of the three-mile limit in the Gulf of Mexico.
Assuming, as the defendants have here argued, that it would have
been reasonable under international law for the United States to
claim three leagues of territorial waters in the Gulf had it so
chosen, we nevertheless cannot conclude that Congress meant to
define Louisiana's boundaries by reference to a rule which was the
subject of so much difference among nations and which had never
been adopted by this country. The terms of the Act of Admission
seem to point so strongly to the contrary that it would require
much more convincing evidence than this to persuade us that the
construction advanced by Louisiana is correct. Furthermore, it is
significant that, only a few years later, Congress admitted
Mississippi and Alabama to the Union, describing their boundaries
as including all islands within six leagues of the shore.
See pp.
363 U. S. 81-82,
post. If the three-league provision in Louisiana's Act of
Admission was intended to reflect a policy of claiming three
leagues of territorial waters, it is difficult to understand why
Congress, so shortly thereafter, should have incorporated a
six-league limit in an otherwise identical provision.
3. Post-admission Events.
To the extent that Louisiana's reliance on post-admission events
is for the purpose of showing that the United States established a
three-league "national boundary" in the Gulf, they cannot help her
case, for reasons previously discussed.
Ante, pp.
363 U.S. 30-36. We need not
decide whether the United States ever claimed three leagues of
Page 363 U. S. 76
territorial waters along the entire Gulf coast, which could, in
a sense, be said to constitute a national boundary, or whether, if
it did, Louisiana would have been entitled to extend its own
boundary to that distance. Under the Submerged Lands Act,
Louisiana's boundary must be measured at the time of her admission,
unless a subsequent change was approved by Congress. If the Act of
Admission fixed the boundary at the shore, neither action by
Congress fixing greater boundaries for other States nor Executive
policy on the extent of territorial waters could constitute
Congressional approval of a maritime boundary for Louisiana.
Louisiana, however, insists that certain of these events subsequent
to admission must be considered in construing the Act of
Admission.
1. We are urged to infer that since, as the Court today holds,
three-league boundaries were fixed for Texas (
ante, p.
363 U. S. 64) and
Florida (
ante, p.
363
U. S. 121), and since, after Texas' admission, the
Treaty of Guadalupe Hidalgo fixed the starting point of the
boundary between the United States and Mexico at three leagues in
the Gulf, Congress must have meant to treat Louisiana equally. The
inference must be based primarily on the existence of the Texas and
Florida boundaries, for the Treaty of Guadalupe Hidalgo relates
only to the boundary between Texas and Mexico, and tends to prove
nothing more than the existence of a three-league boundary for
Texas. In view of the fact that, shortly after Louisiana's
admission, Congress fixed maritime boundaries for Mississippi and
Alabama which, even on Louisiana's construction, would be different
than three leagues, we can discern no consistent Congressional
policy toward the maritime boundaries of the Gulf States at the
time of Louisiana's admission, even if the much later actions with
respect to Texas and Florida could be thought to have established
such a policy.
Cf. Louisiana v. Mississippi, supra, at
202 U. S. 41. It
would require clear evidence that such a policy was operative at
the time
Page 363 U. S. 77
Congress passed the Act admitting Louisiana to overcome language
in that Act which points so strongly against the construction urged
by Louisiana. Nor does the concept of equal footing require such a
construction. While the ownership of certain lands within state
boundaries has been held to be an inseparable attribute of the
political sovereignty guaranteed equally to all States,
see
United States v. Texas, supra, at
339 U. S. 716,
the geographic extent of those boundaries, and thus of the lands
owned, clearly has nothing to do with political equality.
A
fortiori this is true in the case of maritime boundaries
beyond low-water mark, since, except as granted by Congress, the
States do not own the lands beneath the marginal seas.
See
United States v. California, supra; Alabama v. Texas,
supra.
2. Certain treaties successively entered into from 1819 to 1838
by the United States with Spain, Mexico, and the Republic of Texas
establishing the boundary between Texas and the United States are
relied on as indicating that the State and Federal Governments
thought that Congress had fixed a three-league maritime boundary
for Louisiana. [
Footnote
125] Louisiana contends that the treaties fixed the beginning
of the international boundary at a point three leagues from land,
and that therefore the southwestern corner of Louisiana as well as
the southeastern corner of Texas must have been regarded as
extending seaward to that distance. Whether or not such reasoning
is valid, the language of the treaties refutes the premise that the
international boundary began three leagues from land. Both the 1819
and the 1828 treaties recited that
"[t]he boundary line between the two countries, west of
Page 363 U. S. 78
the Mississippi, shall begin on the Gulph of Mexico at the mouth
of the river Sabine, in the sea. . . ."
The Treaty of 1838 referred to the Treaty of 1828, and provided
for a survey of
"that portion of the said boundary which extends from the mouth
of the Sabine, where that river enters the Gulph of Mexico, to the
Red river. [
Footnote
126]"
3. In its answer to the original complaint, Louisiana alleged
certain acts of sovereignty over the marginal sea and seabed and
the acquiescence of the Federal Government therein. [
Footnote 127] Although it has now
abandoned its earlier contention that these acts establish its
title by prescription and estoppel apart from the Submerged Lands
Act, it now urges that they indicate a subsequent practical
construction of Louisiana's Act of Admission. Taking these facts as
proved, they do not have the effect urged by Louisiana. They
indicate only that, until the 1930's, the Federal Government may
have believed that lands beneath the marginal sea belonged to the
States. There is no allegation that the geographical extent of
Louisiana's assertions, assuming that such assertions were made
beyond three miles, was drawn in question, or that the question of
Louisiana's boundary was considered. Some of the acts alleged
constituted police power measures
Page 363 U. S. 79
which a State can enforce against its citizens beyond its
boundaries.
Skiriotes v. Florida, 313 U. S.
69. As to acts touching the development of the submerged
lands themselves, the United States would have had no reason to
object to activity beyond Louisiana's boundary, since not until
1945 did the Federal Government assert any rights in the
Continental Shelf for itself. If any of the other acts alleged
conflicted with this Nation's policy toward territorial waters,
objection would have lain regardless of the location of the State's
boundary, and lack of objection is therefore, for the purposes of
this case, inconclusive.
4. Finally, Louisiana relies on a 1954 statute of its own
establishing the State's boundary at three leagues seaward of the
line between inland and open waters. Act 33 of 1954, La.Rev.Stat.
49:1. It is said that, in so legislating, Louisiana followed the
coastline as defined in regulations promulgated by the Commandant
of the Coast Guard, pursuant to the Federal Act of February 19,
1895, 28 Stat. 672, 33 U.S.C. § 151, and that, because of this, and
also on considerations of convenience and certainty, this state
enactment should be accepted as establishing Louisiana's coast. We
think the consideration of this contention should be postponed to a
later stage of this case. We decide now only that Louisiana is
entitled to submerged land rights to a distance no greater than
three geographical miles from its coastlines, wherever those lines
may ultimately be shown to be.
IV
THE PARTICULAR CLAIMS OF MISSISSIPPI
Mississippi's claim to a three-league seaward boundary must fail
largely for the same reasons that have led us to reject the similar
claim of Louisiana.
Page 363 U. S. 80
The territory which now comprises the part of Mississippi lying
south of the 31st parallel was originally ceded by France to Great
Britain by the Treaty of Paris of February 10, 1763. [
Footnote 128] Great Britain
designated this territory part of West Florida, and, by
proclamation of October 7, 1763, King George III described West
Florida as
"bounded to the southward by the Gulf of Mexico, including all
islands within six leagues of the coast, from the river
Apalachicola to Lake Pontchartrain. . . . [
Footnote 129]"
On September 3, 1783, Great Britain and Spain signed a treaty by
which Great Britain ceded this area to Spain as part of a cession
embracing all of western and eastern Florida. [
Footnote 130]
By the Treaty of San Ildefonso, signed October 1, 1800, Spain
ceded to France "the colony and province of Louisiana."
See p.
363 U. S. 72,
ante. In the Treaty of Paris of April 30, 1803, France
ceded Louisiana to the United States to the same extent as France
had acquired it by virtue of the Treaty of San Ildefonso.
See p.
363 U. S. 74,
ante. A dispute arose between the United States and Spain
as to whether, by the Treaty of San Ildefonso, Spain had conveyed
to France any land east of the Mississippi River (including any
part of West Florida), and therefore whether France could have
subsequently passed that territory to the United States in the
Treaty of Paris. On October 27, 1810, President Madison claimed the
right to possession of the area, [
Footnote 131] and on May 14, 1812, Congress
Page 363 U. S. 81
made it part of the Mississippi Territory. [
Footnote 132] On March 1, 1817, Congress
authorized the creation of the Mississippi, specifically setting
out its boundaries, in part as follows:
"thence due south to the Gulf of Mexico, thence westwardly,
including all the islands within six leagues of the shore,
to the most eastern junction of Pearl river with Lake Borgne. . . .
[
Footnote 133]"
(Emphasis added.)
The Mississippi Constitution, approved by the Act admitting the
State to the Union on December 10, 1817, [
Footnote 134] contained an identical
provision. Finally, by the Treaty of February 22, 1819, Spain
purported to cede East and West Florida to the United States. 8
Stat. 254. It was determined, however, in
Foster v.
Neilson, 2 Pet. 253, that the portion of the
Mississippi south of the 31st parallel passed to the United States
as part of the Louisiana Purchase under the Treaty of Paris in
1803, and not as part of West Florida under the Spanish Treaty of
1819.
We have already held with respect to Louisiana's claim to a
three-league maritime boundary that an Act of Admission which
refers to all islands within a certain distance of the shore does
not appear on its face to mean to establish a boundary line that
distance from the shore, including all waters and submerged lands
as well as all islands. There is nothing in Mississippi's history,
just as there is nothing in Louisiana's, to cause us to depart from
that conclusion in this instance. Indeed, Mississippi relies almost
entirely on the fact that the very language which defeats its
contention was repeatedly used, in the 1763 Proclamation by King
George III, in the Congressional Enabling Act, and in the State
Constitution, and was implicitly incorporated in mesne
conveyances.
Page 363 U. S. 82
Mississippi also urges that the draftsmen of the provision must
have intended to include all waters and submerged lands within six
leagues from shore because the waters are very shallow and the
islands are constantly shifting. This argument, however, appears
only to strengthen the conclusion that it was islands upon which
the provision focused, and not waters where there were no
islands.
We must told that Mississippi is not entitled to rights in
submerged lands lying beyond three geographical miles from its
coast. [
Footnote 135]
V
THE PARTICULAR CLAIMS OF ALABAMA
The preadmission history of Alabama is essentially the same as
that of Mississippi, the portion of the State lying south of the
31st parallel having passed by the same mesne conveyances from
France to the United States. That portion was incorporated into the
Mississippi Territory by the Act of May 14, 1812, [
Footnote 136] and became a part of the
Alabama formed out of that territory. Its Act of Admission
[
Footnote 137]
incorporated the Enabling Act, which described its boundary in part
as follows:
"thence due south, to the Gulf of Mexico, thence eastwardly,
including all the islands within six leagues of the shore, to the
Perdido river. . . . [
Footnote 138]"
The same reasons applicable to the claims of Louisiana and
Mississippi compel us to hold that Alabama is not entitled to
rights in submerged lands lying beyond three geographical miles
from its coast. [
Footnote
139]
Page 363 U. S. 83
VI
CONCLUSIONS
On the basis of what has been said in this opinion, we reach the
following conclusions:
1. As to the States of Louisiana, Mississippi, and Alabama, a
decree will be entered (1) declaring that the United States is
entitled, as against these States, to all the lands, minerals, and
other natural resources underlying the Gulf of Mexico more than
three geographical miles from the coast of each such State, that
is, from the line of ordinary low-water mark and outer limit of
inland waters, and extending seaward to the edge of the Continental
Shelf; (2) declaring that none of these States is entitled to any
interest in such lands, minerals, and resources; (3) enjoining
these States from interfering with the rights of the United States
therein; (4) directing each such State appropriately to account to
the United States for all sums of money derived therefrom
subsequent to June 5, 1950: [
Footnote 140] and (5) dismissing the cross-bill of the
Alabama. [
Footnote
141]
Page 363 U. S. 84
2. As to the Texas, a decree will be entered (1) declaring that
the State is entitled, as against the United States, to the lands,
minerals, and other natural resources underlying the Gulf of Mexico
to a distance of three leagues from Texas' coast, that is, from the
line of ordinary low-water mark and outer limit of inland waters;
(2) declaring that the United States is entitled, as against Texas,
to no interest therein; (3) declaring that the United States is
entitled, as against Texas, to all such lands, minerals, and
resources lying beyond that area, and extending to the edge of the
Continental Shelf; (4) enjoining the State from interfering with
the rights of the United States therein; and (5) directing Texas
appropriately to account to the United States for all sums of money
derived since June 5, 1950, from the area to which the United
States is declared to be entitled.
3. Jurisdiction over this case will be retained for such further
proceedings as may be necessary to effectuate the rights
adjudicated herein.
4. The motions of Louisiana and Mississippi to take depositions
and present evidence are denied, without prejudice to their renewal
in such further proceedings as may be had in connection with
matters left open by this opinion. [
Footnote 142] In so deciding we have not been unmindful
of this Court's liberality in original cases of "allowing full
development of the facts."
See United States v. Texas,
339 U. S. 707,
339 U. S. 715.
We think, however, that the conclusions to be drawn from the
historical documents relied on
Page 363 U. S. 85
by Louisiana, Mississippi, and Alabama are so clear as to leave
no issue presently involved open to dispute, and that we would not
be justified in postponing the granting of the relief to which we
find the United States entitled as against these three States.
[
Footnote 143] By the
same token, we see no need to postpone the adjudication of the
issues now presented as between the United States and Texas, and we
do not understand the Government indeed to contend otherwise.
The parties may submit an appropriate form of decree giving
effect to the conclusions reached in this opinion.
It is so ordered.
The CHIEF JUSTICE and MR. JUSTICE CLARK took no part in the
consideration or decision of these cases.
[For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE
BRENNAN, MR. JUSTICE WHITTAKER and MR. JUSTICE STEWART,
see
post, p.
363 U. S.
129.]
[
Footnote 1]
The suit was originally instituted against Louisiana alone.
Pursuant to the order of this Court, the suit was thereafter
broadened to include the other defendant States.
354 U.
S. 515.
[
Footnote 2]
See note
140
infra.
[
Footnote 3]
In 1945, the United States had proclaimed, as against other
nations, its jurisdiction and control over such submerged lands to
the edge of the Continental Shelf. Presidential Proclamation No.
2667, Sept. 28, 1945, 10 Fed.Reg. 12303, 59 Stat. 884. The
accompanying Executive Order provided that
"[n]either this Order nor the aforesaid proclamation shall be
deemed to affect the determination by legislation or judicial
decree of any issues between the United States and the several
states, relating to the ownership or control of the subsoil and sea
bed of the continental shelf within or outside of the three-mile
limit."
Exec.Order No. 9633, 10 Fed.Reg. 12305.
The "continental shelf," in the geological sense, is the gently
sloping plain which underlies the seas adjacent to most land
masses, extending seaward from shore to the point at which there is
a marked increase in the gradient of the decline and where the
continental slope leading to the true ocean bottom begins. In the
Gulf of Mexico, the edge of the Continental Shelf, as so defined,
lies as much as 200 miles from shore in some places. Christopher,
The Outer Continental Shelf Lands Act: Key to a New Frontier, 6
Stan.L.Rev. 23, 24; H.R.Rep. No. 215, 83d Cong., 1st Sess. 6.
[
Footnote 4]
1937-1938, 75th Congress:
S. 2164, S.J.Res. 208. Both would have confirmed the rights in
the Federal Government. S.J.Res. 208 was passed by the Senate but
not by the House.
1939, 76th Congress, 1st Session:
H.J.Res. 176, H.J.Res. 181, S.J.Res. 24, S.J.Res. 83, S.J.Res.
92. All would have confirmed the rights in the Federal
Government.
1945-1946, 79th Congress:
H.J.Res. 118 and 17 similar bills, H.J.Res. 225, S.J.Res. 48.
All would have quitclaimed rights to the States within their
boundaries. H.J.Res. 225 was passed by both Houses, but vetoed by
President Truman.
1948, 80th Congress, 2d Session:
H.R. 5992 and S. 1988 (quitclaim measures); S. 2222, H.R. 5890,
and S. 2165 (to confirm States' rights in lands underlying inland
waters and the Federal Government's rights in lands underlying the
marginal sea). H.R. 5992 was passed by the House.
1949-1950, 81st Congress:
1st Sess: H.R. 5991, H.R. 5992 ("compromise" bills); S. 155, S.
1545 (quitclaim measures); S. 923, S. 2153, H.R. 354 (to confirm
States' rights in lands beneath inland waters and Federal
Government's rights in lands beneath marginal seas); S. 1700 (to
establish a federal reserve).
2d Sess: H.R. 8137 (quitclaim measure); S.J.Res. 195 (interim
management bill).
1951-1952, 82d Congress:
S.J.Res. 20, H.J.Res. 131, H.J.Res. 274 (interim management
bills); H.R. 4484, S. 940 (quitclaim measures). H.R. 4484 was
passed by the House in the 1st Session; S.J.Res. 20 was passed by
the Senate after amending it by substituting therefor S. 940, in
the 2d Session. S.J.Res. 20 as amended prevailed in conference, but
was vetoed by President Truman.
1953, 83d Congress, 1st Session:
H.R. 2948 and 40 other bills, resulting in drafting of H.R. 4198
by Committee, S.J.Res. 13 (quitclaim measures); H.R. 5134, S. 1901
(to provide for administration of submerged lands seaward of those
granted to States and to the edge of Continental Shelf). S.J.Res.
13 became the Submerged Lands Act, and S. 1901 became the Outer
Continental Shelf Lands Act.
[
Footnote 5]
Section 3 provides:
"(a) It is hereby determined and declared to be in the public
interest that (1) title to and ownership of the lands beneath
navigable waters within the boundaries of the respective States,
and the natural resources within such lands and waters, and (2) the
right and power to manage, administer, lease, develop, and use the
said lands and natural resources all in accordance with applicable
State law be, and they are hereby, subject to the provisions
hereof, recognized, confirmed, established, and vested in and
assigned to the respective States or the persons who were on June
5, 1950, entitled thereto under the law of the respective States in
which the land is located, and the respective grantees, lessees, or
successors in interest thereof;"
"(b)(1) The United States hereby releases and relinquishes unto
said States and persons aforesaid, except as otherwise reserved
herein, all right, title, and interest of the United States, if any
it has, in and to all said lands, improvements, and natural
resources; (2) the United States hereby releases and relinquishes
all claims of the United States, if any it has, for money or
damages arising out of any operations of said States or persons
pursuant to State authority upon or within said lands and navigable
waters. . . ."
[
Footnote 6]
Nine marine, nautical, or geographic miles, or approximately 10
1/2 land, statute or English miles.
[
Footnote 7]
Section 2 provides:
"(a) The term 'lands beneath navigable waters' means --"
"
* * * *"
"(2) all lands permanently or periodically covered by tidal
waters up to but not above the line of mean high tide and seaward
to a line three geographical miles distant from the coast line of
each such State and to the boundary line of each such State where
in any case such boundary as it existed at the time such State
became a member of the Union, or as heretofore approved by Congress
extends seaward (or into the Gulf of Mexico) beyond three
geographical miles . . ."
"
* * * *"
"(b) The term 'boundaries' includes the seaward boundaries of a
State or its boundaries in the Gulf of Mexico or any of the Great
Lakes as they existed at the time such State became a member of the
Union, or as heretofore approved by the Congress, or as extended or
confirmed pursuant to section 4 hereof but in no event shall the
term 'boundaries' or the term 'lands beneath navigable waters' be
interpreted as extending from the coast line more than three
geographical miles into the Atlantic Ocean or the Pacific Ocean, or
more than three marine leagues into the Gulf of Mexico;"
"(c) The term 'coast line' means the line of ordinary low water
along that portion of the coast which is in direct contact with the
open sea and the line marking the seaward limit of inland waters. .
. ."
[
Footnote 8]
Section 4 provides:
"The seaward boundary of each original coastal State is hereby
approved and confirmed as a line three geographical miles distant
from its coast line. . . . Any State admitted subsequent to the
formation of the Union which has not already done so may extend its
seaward boundaries to a line three geographical miles distant from
its coast line. . . . Any claim heretofore or hereafter asserted
either by constitutional provision, statute, or otherwise,
indicating the intent of a State so to extend its boundaries is
hereby approved and confirmed, without prejudice to its claim, if
any it has, that its boundaries extend beyond that line. Nothing in
this section is to be construed as questioning or in any manner
prejudicing the existence of any State's seaward boundary beyond
three geographical miles if it was so provided by its constitution
or laws prior to or at the time such State became a member of the
Union, or if it has been heretofore approved by Congress."
[
Footnote 9]
Section 6(a) provides:
"The United States retains all its navigational servitude and
rights in and powers of regulation and control of said lands and
navigable waters for the constitutional purposes of commerce,
navigation, national defense, and international affairs, all of
which shall be paramount to, but shall not be deemed to include,
proprietary rights of ownership, or the rights of management,
administration, leasing, use, and development of the lands and
natural resources which are specifically recognized, confirmed,
established, and vested in and assigned to the respective States
and others by section 3 of this Act."
[
Footnote 10]
Section 9 provides:
"Nothing in this Act shall be deemed to affect in any wise the
rights of the United States to the natural resources of that
portion of the subsoil and seabed of the Continental Shelf lying
seaward and outside of the area of lands beneath navigable waters,
as defined in section 2 hereof, all of which natural resources
appertain to the United States, and the jurisdiction and control of
which by the United States is hereby confirmed."
Later in the same year, Congress passed the Outer Continental
Shelf Lands Act, 67 Stat. 462, 43 U.S.C. §§ 1331-1343, which
provides in detail for federal exploitation of the submerged lands
of the Continental Shelf beyond those granted to the States by the
Submerged Lands Act.
[
Footnote 11]
See S.Rep. No. 133, 83d Cong., 1st Sess., pt. 2
(minority views), 6.
[
Footnote 12]
This holding was approved in a considerable number of subsequent
cases.
See, e.g., 59 U. S.
Maryland, 18 How. 71,
59 U. S. 74;
Mumford v.
Wardwell, 6 Wall. 423,
73 U. S. 436;
Weber v. Board of Harbor
Commissioners, 18 Wall. 57,
85 U. S. 65-66;
McCready v. Virginia, 94 U. S. 391,
94 U. S. 394;
Shively v. Bowlby, 152 U. S. 1,
152 U. S. 26-28;
Manchester v. Massachusetts, 139 U.
S. 240,
139 U. S.
259-260;
United States v. Mission Rock Co.,
189 U. S. 391,
189 U. S. 404;
Louisiana v. Mississippi, 202 U. S.
1, 52;
The Abby Dodge, 223 U.
S. 166,
223 U. S. 174;
Borax Consolidated Ltd., v. Los Angeles, 296 U. S.
10,
296 U. S. 15-16.
See also Martin v.
Waddell, 16 Pet. 367,
41 U. S.
410.
[
Footnote 13]
This Court, in the
California case,
supra, at
332 U. S. 36,
stated that, in following the
Pollard case, it had
previously
"used language strong enough to indicate that the Court then
believed that states not only owned tidelands and soil under
navigable inland waters, but also owned soils under all navigable
waters within their territorial jurisdiction, whether inland or
not."
[
Footnote 14]
See S.Rep. No. 133, 83d Cong., 1st Sess. 21.
[
Footnote 15]
One English, statute, or land mile equals approximately .87
marine, nautical, or geographical mile. The conventional "3-mile
limit" under international law refers to three marine miles, or
approximately 3.45 land miles.
[
Footnote 16]
See note 4
ante. The legislative history of all the bills considered
prior to enactment of the Submerged Lands Act in 1953 is directly
relevant to the latter Act, since the purposes and phraseology of
such bills, and the objections raised against them were
substantially similar. During the hearings on the final bills, all
prior hearings on predecessor bills were expressly incorporated
into the record,
see Hearings before Subcommittee No. 1 of
the House Committee on the Judiciary, 83d Cong., 1st Sess., on H.R.
2948 and similar bills 1-2 (hereinafter cited as 1953 House
hearings); Hearings before the Senate Committee on Interior and
Insular Affairs on S.J.Res. 13 and other bills 6-8 (hereinafter
cited as 1953 Senate Hearings), and similar references to past
hearings and debates were made on the floor of Congress,
see 99 Cong.Rec. 2554, 2613, 4097.
[
Footnote 17]
H.R.Rep. No. 1778, 80th Cong., 2d Sess., to accompany H.R. 5992
at 1, 2, 3, 16 (Apr. 21, 1948);
"H.R. 5992 is, in substance, the same as numerous bills
introduced in the House. . . . [T]he aforementioned bills [were]
introduced in the Congress to preserve the
status quo as
it was thought to be prior to the
California decision . .
. to confirm and establish the rights and claims of the 48 States,
long asserted and enjoyed with the approval of the Federal
Government, to the lands and resources beneath navigable waters
within their boundaries. . . . The repeated assertions by our
highest Court for a period of more than a century of the doctrine
of State ownership of all navigable waters, whether inland or not,
and the universal belief that such was the settled law, have for
all practical purposes established a principle which the committee
believes should, as a matter of policy, be recognized and confirmed
by Congress as a rule of property law."
S.Rep. No. 1592, 80th Cong., 2d Sess., to accompany S. 1988 at
17-18 (June 10, 1948), after noting that the legal profession had
long believed that the States owned the lands under navigable
waters within their territorial jurisdiction, went on to
comment:
"The evidence is conclusive that not only did our most eminent
jurists so believe the law to be, but such was the belief of lower
Federal court jurists and State supreme court jurists as reflected
by more than 200 opinions. The pronouncements were accepted as the
settled law by lawyers and authors of leading legal treatises."
"The present Court in the California decision did not expressly
overrule these prior Supreme Court opinions but, in effect, said
that all the eminent authorities were in error in their
belief."
"For the first time in history, the Court drew a distinction
between the legal principles applicable to bays, harbors, sounds,
and other inland waters, on the one hand, and to submerged lands
lying seaward of the low-water mark, on the other, although it
appears the Court had ample opportunity to do so in many previous
cases, but failed or refused to draw such distinction. In the
California decision, the Court refused to apply what it
termed 'the old inland water rule' to the submerged coastal lands;
however, historically speaking, it seems clear that the rule of
State ownership of inland waters is, in fact, an offshoot of the
marginal sea rule established much earlier."
H.R.Rep. No. 695, 82d Cong., 1st Sess., to accompany H.R. 4484
at 5 (July 12, 1951):
"Title II merely fixes as the law of the land that which,
throughout our history prior to the Supreme Court decision in the
California case in 1947, was generally believed and
accepted to be the law of the land -- namely, that the respective
States are the sovereign owners of the land beneath navigable
waters within their boundaries and of the natural resources within
such lands and waters. Therefore, title II recognizes, confirms,
vests, and establishes in the States the title to the submerged
lands, which they have long claimed, over which they have always
exercised all the rights and attributes of ownership."
S.Rep. No. 133, 83d Cong., 1st Sess., to accompany S.J.Res. 13
at 7-8 (Mar. 27, 1953):
"All of these areas of submerged lands have been treated alike
in this legislation because they have been possessed, used, and
claimed by the States under the same rule of law, to-wit: that the
States own all lands beneath navigable waters within their
respective boundaries. Prior to the
California decision,
no distinction had been made between lands beneath inland waters
and lands beneath seaward waters so long as they were within State
boundaries."
"The rule was stated by the Supreme Court in the early case of
Pollard v. Hagan. . . ."
"
* * * *"
"The purpose of this legislation is to write the law for the
future as the Supreme Court believed it to be in the past -- that
the States shall own and have proprietary use of all lands under
navigable waters within their territorial jurisdiction, whether
inland or seaward, subject only to the governmental powers
delegated to the United States by the Constitution."
[
Footnote 18]
For example, the very first "quitclaim" bill introduced in
Congress -- H.J.Res. 118, 79th Cong., 1st Sess., provided:
"
Resolved . . . That, in consideration of the premises,
the United States of America hereby releases, remises, and
quitclaims all right, title, interest, claim, or demand of the
United States of America in and to all lands beneath tidewaters and
all lands beneath navigable waters within the boundaries of each of
the respective States. . . ."
[
Footnote 19]
See, e.g., 91 Cong.Rec. 8867 (remarks of Representative
Gearhart); 92 Cong.Rec. 10310 (remarks of Representative Sumners).
See also 92 Cong.Rec. 9519 (remarks of Senator
Overton).
[
Footnote 20]
H.J.Res. 118, 79th Cong., 1st Sess.; H.J.Res. 225, 79th Cong.,
1st Sess.; H.R. 5992, 80th Cong., 2d Sess.; S. 1988, 80th Cong., 2d
Sess. H.J.Res. 118 and H.J.Res. 225 used the term "lands beneath
tidewaters" to denote the lands beneath the navigable waters of the
marginal sea.
[
Footnote 21]
See H.R.Rep. No. 927, 79th Cong., 1st Sess., to
accompany H.J.Res. 225 at 2 (July 17, 1945):
"The ownership by the States of these lands as above stated is
coextensive with the States' boundaries, which, in the case of the
coastal States, is in no instance less than 3 miles from the coast
line."
92 Cong.Rec. 9541 (remarks of Senator Cordon):
"[T]he joint resolution is limited to those submerged lands
within the boundaries of the several States, with this exception,
that, if there should be -- and there conceivably cannot be a State
whose boundary did not go 3 miles at sea -- then it would cover 3
miles at sea."
[
Footnote 22]
California Constitution of 1849, Art. XII, § 1. California
claimed that this boundary was ratified by the Act admitting it to
the Union. 9 Stat. 452.
See 92 Cong.Rec. 9614 (remarks of
Senator Knowland). Attorney General Clark testified that six of the
11 original coastal States had not yet expressly claimed a
three-mile boundary in the marginal sea, and that the other five
had done so unilaterally long subsequent to the formation of the
Union -- Massachusetts in 1859 (
see Stat.1859, c. 289, as
amended, Mass.Gen.Laws Ann. c. 1, § 3), Rhode Island in 1872,
(R.I., Gen.Stat.1872, c. 1, § 1), New Jersey in 1906 (
see
N.J.Stat.Ann., Tit. 40, § 18-5), New Hampshire in 1901
(
see N.H.Laws 1901, c. 115), and Georgia in 1916
(
see Acts 1916, p. 29, Ga.Code Ann. § 15-101).
[
Footnote 23]
See 92 Cong.Rec. 9524-9526 (remarks of Senator
Donnell); Joint Hearings before the Committees on the Judiciary of
the Congress on S.1988 and similar House bills, 80th Cong., 2d
Sess. 885-895 (hereinafter cited as 1948 Joint Hearings).
[
Footnote 24]
Id., 93-95, 884-886.
[
Footnote 25]
Because of fears that this permission to extend boundaries would
not protect grantees of the original States who had received their
grants at a time when the State had not yet expressly extended its
boundaries, a provision was subsequently inserted as the first
sentence of § 4 of the present Act, absolutely confirming the
boundary of each original State at three miles.
See 1953
Senate Hearings, pt. II (Exec. Sess.), 1316; 99 Cong.Rec. 2697. The
last sentence of § 4 was first inserted without explanation in H.R.
8137, 81st Cong., 2d Sess., and was carried forward as part of
S.J.Res. 20, 82d Cong., 2d Sess., as it was amended and passed by
Congress and vetoed by President Truman.
See 98 Cong.Rec.
2886.
[
Footnote 26]
See 91 Cong.Rec. 8858; 92 Cong.Rec. 10310.
See also
Manchester v. Massachusetts, 139 U. S. 240,
139 U. S.
257-258.
[
Footnote 27]
See, e.g., 98 Cong.Rec. 2884-2885 (remarks of Senator
Holland).
See also H.R.Rep. No. 927, 79th Cong., 1st Sess.
2.
[
Footnote 28]
See 98 Cong.Rec. 3351 (remarks of Senator Holland);
1953 House Hearings 222 (remarks of Attorney General Brownell); 99
Cong.Rec. 2757, 2922-2923, 4095 (remarks of Senator Holland).
Solicitor General Perlman, while rejecting the idea that the
existence of a seaward boundary entitled the State to ownership of
the underlying lands, stated that California was entitled to a
boundary for other purposes of three nautical miles, as opposed to
the three English miles asserted by its constitution, because of
the federal three-mile policy. Hearings before the Senate Committee
on Interior and Insular Affairs, on S.J.Res. 20 and S. 940, 82d
Cong., 1st Sess. 40 (hereinafter cited as 1951 Senate
Hearings).
[
Footnote 29]
See 92 Cong.Rec. 9541 (remarks of Senator Cordon);
id., 9619 (remarks of Senator Capehart); 99 Cong.Res. 3265
(remarks of Senator Hill).
[
Footnote 30]
Leander I. Shelley, counsel for the port authorities, whose
proposal that all States be permitted to extend their boundaries to
three miles was adopted by the Committee, said:
"My position is that, prior to the decision of the Supreme Court
in the
California case, practically everybody concerned .
. . was under the impression that all the coastal States owned the
land for 3 miles out. . . ."
"Whether their failure to be in that position is because of a
title question or boundary question is immaterial to us. Our
position is that they should be restored to where they thought they
were."
1948 Joint Hearings 894.
See also 92 Cong.Rec.
9515-9516 (remarks of Senator O'Mahoney);
id., 9519
(remarks of Senator Overton); 99 Cong.Rec. 4095 (remarks of Senator
Holland).
[
Footnote 31]
See 98 Cong.Rec. 3351-3352 (remarks of Senator
Holland).
[
Footnote 32]
E.g., 91 Cong.Rec. 8867; 92 Cong.Rec. 9518; Hearings
before the Senate Committee on Interior and Insular Affairs on S.
155, S. 923, S. 1545, S. 1700, and S. 2153, 81st Cong., 1st Sess.
131 (hereinafter cited as 1949 Senate Hearings); 1953 Senate
Hearings 212-234; 99 Cong.Rec. 2620, 2830, 4171-4175.
[
Footnote 33]
E.g., 92 Cong.Rec. 9516; 99 Cong.Rec. 2621, 2752,
4095-4096.
[
Footnote 34]
See 1949 Senate Hearings 187; 98 Cong.Rec. 3352; 1953
Senate Hearings 47-48, 536, 1093, 1115; 99 Cong.Rec. 2896.
[
Footnote 35]
Hearings before the Senate Judiciary Committee on S.J.Res. 48
and H.J.Res. 225, 79th Cong., 2d Sess. 228-230 (hereinafter cited
as 1946 Senate Hearings); 1951 Senate Hearings 420.
[
Footnote 36]
The structure of § 4 was so explained by Senators Cordon,
Holland, and Long. 1953 Senate Hearings, pt. II (Exec. Sess.),
1317-1318; 99 Cong.Rec. 2621, 2698, 4095-4096.
[
Footnote 37]
92 Cong.Rec. 9441-9442, 9516; 1953 Senate Hearings 48-49; id.,
pt. II (Exec. Sess.), 1318, 1414-1415; 99 Cong.Rec. 2558-2559,
2620-2622, 2632-2633, 2694-2695, 2703, 2746, 2754-2755, 2757,
2896-2897, 2933, 4095-4096, 4116.
[
Footnote 38]
98 Cong.Rec. 3347, 3350 (Senators Connally and Holland); 1953
House Hearings 181, 195 (Secretary of the Interior McKay); 1953
Senate Hearings 957 (Attorney General Brownell); letter from
President Eisenhower to Jack Porter, Republican National
Committeeman, Dec. 4, 1957, reported in Houston Post, Dec. 7, 1957,
§ 1, pp. 1-2; letter from President Eisenhower to Senator Anderson,
Apr. 24, 1953, reprinted in 99 Cong.Rec. 3865; letter from
President Eisenhower to Price Daniel, Governor of Texas, Nov. 7,
1957, printed at p. 294 of Texas' brief.
[
Footnote 39]
H.J.Res. 118, 79th Cong., 1st Sess.; H.J.Res. 225, S.J.Res. 48,
79th Cong., 2d Sess.; S. 1988 and H.R. 5992, 80th Cong., 2d
Sess.
[
Footnote 40]
See, e.g., 1946 Senate Hearings 183; 91 Cong.Rec. 8867;
92 Cong.Rec. 9515-9518.
[
Footnote 41]
E.g., 92 Cong.Rec. 9518, 9628 (remarks of Senator
Connally);
id., 9524 (remarks of Senator Donnell).
[
Footnote 42]
La. Act No. 55 of 1938, La.Rev.Stat. 49:1 (27 miles); Act of May
16, 1941, L.Tex., 47th Leg., p. 454 (27 miles), Act of May 23,
1947, L.Tex., 50th Leg., p. 451 (outer edge of Continental Shelf),
Vernon's Tex.Civ.Stat. Art. 5415a.
See also Act of May 25,
1947, L.Tex., 50th Leg., p. 490, Vernon's Tex.Civ.Stat. Art. 1592a
(boundaries of counties extended to edge of Continental Shelf).
[
Footnote 43]
[
Footnote 44]
Representative Willis of Louisiana made clear the nature of the
inquiry it was contemplated the courts would make to ascertain the
location of "historic boundaries":
"Mr. WILLIS. Do you know of a better criteria than a historic
approach?"
"Secretary McKAY. No, sir."
"Mr. WILLIS. Let us apply that criteria to Texas, for instance,
and I think you and I are in thorough agreement. Texas was a
republic. The Republic of Texas took certain action. Then there was
a treaty between the Republic of Texas and the United States
preliminary to admission. There might have been maps exhibited or
maps in existence at that time. Then Congress passed an act
admitting Texas into the Union, and then Texas adopted a
constitution delimiting its historic boundaries. Those are the
historic documents that set forth Texas' title; is that
correct?"
"Secretary McKAY. That is right. If my memory is correct, the
United States would not take the land. They gave it back to
Texas."
"Mr. WILLIS. That is right. There is nothing unusual about that.
Let me illustrate the point in this way. I know you are not a
lawyer, but I think you can follow this. If a farmer should consult
a lawyer to find out what the limits of his farm are, that lawyer
would have to examine the papers. He would have to go first to the
patent. He would have to consult all the deeds in the chain of
title. There might be maps attached to those deeds which help to
interpret them. After his study, he would give an opinion on the
limits, based upon the history of that title, and every link in the
chain."
"
* * * *"
". . . There has been some talk here this morning about 3 miles.
The principle, though, that I think you and I agree on is that we
have to go to the documents to find out what our historic
boundaries are?"
"Secretary McKAY. Yes, sir."
1953 House Hearings 197-198. And, on the floor of the House, he
explained "historic boundaries" as follows:
"You will hear a great deal during general debate today, first
about the historic boundaries and second about the outer
continental shelf of the States. Let me explain what these terms
mean."
"Each State was admitted into the Union by an act of Congress,
and each State adopted a constitution which was approved by the
Congress. The act of Congress and the first Constitution defined
the boundaries of each State in the first instance. In some cases,
treaties were involved. Thus, the Louisiana Territory was
retroceded or reconveyed by Spain to France in 1803, and then
France, in turn, transferred the Louisiana Territory to the United
States. Thereafter, Louisiana was admitted into the Union as a
State under an act of Congress of 1812, and the first Constitution
of Louisiana, of 1812, was approved by the Congress. Both Spain and
France exerted influence over and claimed, owned, and controlled a
marginal belt as part of the Louisiana Territory, as shown by maps
then used and still in existence."
"Obviously, we must resort to all of such ancient documents in
order to determine the true and actual historic boundaries of each
State, and, as a practical matter, that is exactly what this bill
permits and accomplishes. I do not know of any better criteria for
the establishment of the boundaries of the States than a historic
approach."
99 Cong.Rec. 2504.
[
Footnote 45]
See 99 Cong.Rec. 4174-4175 (remarks of Senator Daniel);
New Mexico v. Texas, 275 U. S. 279;
276 U. S. 276 U.S.
557;
276 U. S. 276 U.S.
558;
New Mexico v. Colorado, 267 U. S.
30.
[
Footnote 46]
1953 Senate Hearings, pt. II (Exec. Sess.), 1317-1319; 99
Cong.Rec. 3551-3552, 4095.
[
Footnote 47]
It is worth observing that, at one time, the claims protected
from prejudice by § 4 included not only those based on state
constitutional or statutory provisions, but also those based on
"any treaty ratified by the Senate of the United States" or on "an
act of Congress." 99 Cong.Rec. 2567. This provision was inserted
specifically to preserve Texas' claim based on the Joint Resolution
of Annexation (
see p.
363 U. S. 37,
post) which was loosely referred to as a "treaty" between
Texas and the United States.
Id., 2568.
See also
1953 House Hearings 301-302.
[
Footnote 48]
1919 Senate Hearings 138-139; 1953 Senate Hearings 957,
1076-1078; 99 Cong.Rec. 2504, 2558-2559, 2746, 2754, 2755, 2933,
4095, 4096, 4116, 4171, 4175, 4477.
[
Footnote 49]
E.g., 99 Cong.Rec. 2916 (remarks of Senator
Douglas).
[
Footnote 50]
1948 Joint Hearings 618 (Attorney General Clark); Hearings
before Subcommittee No. 1 of the House Judiciary Committee on H.R.
5991 and H.R. 5992, 81st Cong., 1st Sess. 196 (Solicitor General
Perlman); 1951 Senate Hearings 40, 393 (Solicitor General Perlman);
97 Cong.Rec. 9167 (letter from Solicitor General Perlman introduced
by Representative Celler); 98 Cong.Rec. 5247 (Representatives
Mansfield and Feighan); 1953 Senate Hearings 27 (Assistant
Secretary of State Morton);
id., 663 (Senator Anderson);
id., 678-679, 680-684 (former Solicitor General Perlman);
id., 1053-1086 (State Department Deputy Legal Adviser
Tate); 99 Cong.Rec. 2502-2503 (Representative Hays);
id.,
2568 (Representative Yates);
id., 3034 (Senator
Anderson).
[
Footnote 51]
1953 Senate Hearings 1051-1086.
[
Footnote 52]
1953 Senate Hearings 326;
id., pt. II (Exec. Sess.),
1415.
[
Footnote 53]
Hearings before the House Judiciary Committee and a Special
Subcommittee of the Senate Judiciary Committee on H.J.Res. 118 and
other bills, 79th Cong., 1st Sess. 23; 91 Cong.Rec. 8867; 1949
Senate Hearings 137-138; 1953 Senate Hearings 670, 1076-1078,
1082-1084; 99 Cong.Rec. 4074-4075, 4172-4173. Even Senator
Anderson, who was opposed to the bill, in proposing that the grant
should, in any event, be limited to three leagues in the Gulf of
Mexico, conceived that distance to be justified as an exception to
this country's three-mile policy, based on the fact that the Gulf
is very largely enclosed by land. 1953 Senate Hearings, pt. II
(Exec. Sess.), 1349.
[
Footnote 54]
1953 Senate Hearings 319-323, 1056-1057, 1060-1063, 1076-1078,
1080-1082.
See also 99 Cong.Rec. 2513, 2569,
3041-3042.
[
Footnote 55]
Similar suggestions seem to have been made in the course of
consideration of the various "quitclaim" bills, though never fully
developed.
See 92 Cong.Rec. 9518 (remarks of Senator
Connally); 1953 Senate Hearings 316-317 (statement of John J.
Real); 99 Cong.Rec. 3037 (remarks of Senators Gore and Anderson);
id., 3265 (remarks of Senators Morse and Hill);
id., 3270 (remarks of Senator Hill).
See also
1953 Senate Hearings 1078 (remarks of Senator Daniel). In this
Court, the Government has undertaken to support its position
respecting this Nation's adherence to the three-mile limit by a
letter from the Secretary of State summarizing historical Executive
policy in that regard. In our view of the issues in this case, we
do not reach the Government's contention that the Secretary's
letter would be conclusive upon us as to the existence of that
policy.
[
Footnote 56]
See Mouton, The Continental Shelf 183-192 (1952
ed.).
[
Footnote 57]
See 1951 Senate Hearings 511.
[
Footnote 58]
See United States v. California, supra, at
332 U. S.
33.
[
Footnote 59]
See 1953 Senate Hearings 1074-1075.
[
Footnote 60]
For example, the United States has long claimed the right to
exercise jurisdiction over domestic and foreign vessels beyond the
three-mile limit for purposes of customs control, 1 Stat. 145, 164,
648, 668; Anti-Smuggling Act of Aug. 5, 1935, 49 Stat. 517, 19
U.S.C. §§ 1701-1711, and for defense purposes, 62 Stat. 799, 18
U.S.C. § 2152, and this practice is recognized by international
law.
See 1953 Senate Hearings 1087-1088; American Law
Institute, Restatement of the Foreign Relations Law of the United
States (Tentative Draft No. 2, May 8, 1958), §§ 8(c), 21.
[
Footnote 61]
The boundaries of Texas were described in full by the Act as
follows:
"That from and after the passage of this act, the civil and
political jurisdiction of this republic be, and is hereby declared
to extend to the following boundaries, to-wit: 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,
thence up the principal stream of said river to its source, thence
due north to the forty-second degree of north latitude, thence
along the boundary line as defined in the treaty between the United
States and Spain, to the beginning: and that the president be, and
is hereby authorized and required to open a negotiation with the
government of the United States of America, so soon as in his
opinion the public interest requires it, to ascertain and define
the boundary line as agreed upon in said treaty."
[
Footnote 62]
On March 1, the Senate resolved that recognition of Texas would
be expedient and proper, Cong.Globe, 24th Cong., 2d Sess. 83, 270.
A Charge d'Affaires to be sent there was appointed by the President
on March 3, 4 S.Exec.J. 631, and confirmed by the Senate on March
7, 5 id., 17.
[
Footnote 63]
8 Stat. 511.
[
Footnote 64]
S.Doc. No. 341, 28th Cong., 1st Sess. 10; Cong.Globe, 28th
Cong., 1st Sess. 652.
[
Footnote 65]
5 Stat. 797.
[
Footnote 66]
9 Stat. 108.
[
Footnote 67]
Texas Const., 1845, Art. Thirteenth, § 2, 2 Gammel, Laws of
Texas at 1299.
[
Footnote 68]
8 Stat. 200.
[
Footnote 69]
13 Cong.Deb., 24th Cong., 2d Sess., Pt. II at 229.
[
Footnote 70]
See, e.g., Cong.Globe, 28th Cong., 1st Sess., App. 540;
id. at 697. The Rio Grande was also sometimes called the
Rio Bravo, Rio Bravo del Norte, or Rio Del Norte. We shall refer to
it throughout as the Rio Grande.
[
Footnote 71]
8 Stat. 252.
[
Footnote 72]
See Cong.Globe, 28th Cong., 1st Sess., App. 486,
697.
[
Footnote 73]
In 1825 and 1827, President Adams and his Secretary of State,
Henry Clay, made overtures to Mexico for the acquisition of Texas.
See Justin H. Smith, The Annexation of Texas, 8;
Cong.Globe, 28th Cong., 1st Sess., App. 698, 768. Again in 1829 and
1835, President Jackson made similar overtures. Smith,
op.
cit., supra, at 9; Cong.Globe, 28th Cong., 1st Sess., App.
698. It seems that the Rio Grande was not always sought as the
boundary, but that, on at least one occasion, Jackson was willing
to stop at the center of the desert between the Nueces and the Rio
Grande.
[
Footnote 74]
See 4 Miller, Treaties and Other International Acts of
the United States of America (1934), 139; Justin H. Smith, The
Annexation of Texas 1, 7, 20; Cong.Globe, 28th Cong., 1st Sess.,
App. 697; 1 Garrison, Diplomatic Correspondence of the Republic of
Texas, 127, 132-133, H.R.Doc. No. 1282, 60th Cong., 2d Sess. 127,
132-133; letter from Messrs. Van Zandt and Henderson to Secretary
of State Calhoun, Apr. 15, 1844, S.Doc. No. 341, 28th Cong., 1st
Sess. 13.
[
Footnote 75]
S.Doc. No. 341, 28th Cong., 1st Sess. 10.
[
Footnote 76]
Speech of Senator Benton of Missouri, Cong.Globe, 28th Cong.,
1st Sess., App. 474; Speech of Senator Jarnagin of Tennessee,
id. at 685. The contested portions of Texas' claim were
the area between the Nueces and Rio Grande Rivers on the southwest,
and the area bounded by the upper portion of the Rio Grande in the
northwest, which is now part of New Mexico.
See diagram at
p.
363 U. S. 65,
post.
[
Footnote 77]
Speech of Senator Walker of Mississippi, Cong.Globe, 28th Cong.,
1st Sess., App. 548; speech of Senator McDuffie of South Carolina,
id. at 529; speech of Senator Breese of Illinois,
id. at 540; speech of Senator Buchanan of Pennsylvania,
id. at 726; speech of Senator Woodbury of New Hampshire,
id. at 768.
[
Footnote 78]
S.Doc. No. 341, 28th Cong., 1st Sess., 53, 54.
[
Footnote 79]
Id. at 55-57.
[
Footnote 80]
Cong.Globe, 28th Cong., 1st Sess., App. 548.
[
Footnote 81]
Id. at 540.
[
Footnote 82]
Id. at 768, 726.
[
Footnote 83]
Opponents of the proposals objected that, since the consent of a
foreign nation was required, the object could be accomplished only
by an exercise of the treatymaking power, which would bring Texas
in as a territory.
See, e.g., Cong.Globe, 28th Cong., 2d
Sess., App. 367. Supporters of the Resolutions insisted that the
express constitutional power of Congress to admit new States on
prescribed terms extended to the admission of foreign states, as
well as of territory already belonging to the United States.
See, e.g., id. at 406-407. The measure as finally passed
represented a compromise, the Senate having added a § 3, which
authorized an alternative procedure to be pursued by the President,
at his election, under the treatymaking power.
See
Cong.Globe, 28th Cong., 2d Sess. 359, 360, 362-363. President Polk
elected not to use that power.
[
Footnote 84]
See, e.g., speech of Senator Ashley of Arkansas,
Cong.Globe, 28th Cong., 2d Sess., App. 288:
"[T]he present boundaries of Texas, I learn from Judge Ellis,
the president of the convention that formed the constitution of
Texas, and also a member of the first legislature under that
constitution, were fixed as they now are solely and professedly
with a view of having a large margin in the negotiation with
Mexico, and not with the expectation of retaining them as they
now exist in their statute book."
(Emphasis in original.)
See also speech of
Representative Brinkerhoff of Ohio, Cong.Globe, 28th Cong., 2d
Sess. 346-347. Significantly, the House of Representatives, on Jan.
16, 1845, passed a resolution calling on the President to
communicate any information he might possess on the territory
within which the authority and jurisdiction of the Republic of
Texas was recognized by its inhabitants.
Id. at 147.
[
Footnote 85]
Speech of Senator McDuffie of South Carolina, Cong.Globe, 28th
Cong., 1st Sess., App. 530: "[T]he treaty neither does convey, nor
is intended to convey, one solitary square foot of land which does
not
rightfully belong to Texas." (Emphasis added.) Speech
of Senator Walker of Mississippi,
id. at 548:
"[W]hen [a nation] is ceded by name, that cession extends only
to the country embraced within its
lawful boundaries. If,
then, the Del Norte . . . be the
proper boundary, then it
is and ought to be included."
(Emphasis added.)
See also Speech of Senator Buchanan
of Pennsylvania,
id. at 726; speech of Senator Breese of
Illinois,
id. at 540.
[
Footnote 86]
Representative Rhett of South Carolina proposed that
"the sense of the . . . [House] be taken on the first number in
the series of resolutions, which simply declared that Texas should
be annexed to the United States."
He did not "feel very scrupulous as to the particular means,
provided Texas was got; and have it, they would." Cong.Globe, 28th
Cong., 2d Sess., App. 55.
See also remarks of
Representative Ingersoll, Chairman of the Committee on Foreign
Affairs, which had reported on the subject of annexation, objecting
to this procedure,
ibid., and those of Senator Dayton of
New Jersey,
id. at 387.
[
Footnote 87]
The bills introduced included the following variations in
treatment of the boundary question:
"That the Republic of Texas . . . be received and admitted. . .
. That the United States be authorized to adjust and settle all
questions of boundary which may arise with other governments."
(Offered by Senator Ashley of Arkansas, Cong.Globe, 28th Cong.,
2d Sess., App. at 287-288.)
"The Republic of Texas . . . cedes to the United States all the
territories of Texas. . . ."
(Reported by Representative Ingersoll as Chairman of the
Committee on Foreign Affairs, Cong.Globe, 28th Cong., 2d Sess. at
191.)
"[T]he territory now known as the Republic of Texas be, and the
same is hereby, annexed to, and made a portion of, the territory of
the United States. . . . That commissioners shall hereafter be
appointed, who shall establish the boundaries. . . ."
(Offered by Representative Weller of Ohio,
id. at
192.)
"That the Congress both consent that the territory rightfully
included within the limits of Texas be erected into a new State. .
. . That said State be formed subject to the adjustment, by the
Government of the United States, of all questions of boundary that
may arise with other governments."
(Offered by Representative Douglass of Illinois,
id. at
192.)
"That the Congress doth consent that the territory known as the
Republic of Texas, and rightfully belonging to the same, may be
erected into a new State. . . . That the President of the United
States, by and with the advice and consent of the Senate, is hereby
authorized to adjust the settle all questions relating to the
boundaries of said territory, which may arise with other
governments."
(Offered by Representative Burke of New Hampshire,
ibid.) There were also several proposals to carve a State
out of only part of the Texan territory, with assigned territorial
boundaries, and to admit the remainder as a territory subject to
later adjustment of boundaries. Cong.Globe, 28th Cong., 2d Sess. 76
(Representative Tibbatts of Kentucky); 107, 187, App. 304
(Representative Dromgoole of Virginia); 192 (Representative
Robinson of New York); 359 (Senator Walker of Mississippi); 362
(Senator Miller of New Jersey).
[
Footnote 88]
See, e.g., Cong.Globe, 28th Cong., 2d Sess., App. 387,
400. The maintainable extent of Texas' territory was crucial for
two reasons: first, because it had been proposed that the United
States assume the Texan debt and that Texas cede all her vacant and
unappropriated public lands to be applied in discharge of the debt;
second, because it had been proposed that several States be carved
out of the Texan territory, those lying south of latitude 36
degrees 30 minutes -- the Missouri compromise line -- to be slave
States, and those to the north to be free States. In this context,
it was repeatedly asserted by opponents of the Annexation
Resolutions that, by their terms, the United States would not get
nearly as much public land as the Texas Boundary Act would
indicate, nor any land north of the Missouri compromise line,
despite the Act's claim of a boundary extending to the 42d
parallel.
See, e.g., Cong.Globe, 28th Cong., 2d Sess. 191
(Representative McIlvaine of Pennsylvania);
id., App.
369-370 (Representative Severance of Maine).
[
Footnote 89]
Representative Hudson of Massachusetts said:
"What is the Texas which we propose to take into our embrace?
Not simply the old province of Texas -- not the Texas which
declared itself independent, and whose independence we and several
other nations have recognised -- not Texas proper, but a large
amount of territory which is not included in Texas -- territory
over which Texas never extended her conquest or jurisdiction, and
which is as much a part of Mexico as the city of Mexico
itself."
Cong.Globe, 28th Cong., 2d Sess., App. 336.
See also remarks of Representative Rayner of North
Carolina,
id., 411-412,
see note 98 infra; and of Representative
Haralson of Georgia.
Id., App. 195,
see note 97 infra.
[
Footnote 90]
Treaty of Amity, Settlement, and Limits, Feb. 22, 1819, 8 Stat.
252; Treaty of Limits, Jan. 12, 1828, 8 Stat. 372.
[
Footnote 91]
This compact was alluded to during the debates on the
unsuccessful 1844 Treaty as having probably provided the origin of
the boundary claims made in the Texas 1836 boundary statute.
See Cong.Globe, 28th Cong., 1st Sess., App. 700, 768.
[
Footnote 92]
1 Garrison, Diplomatic Correspondence of the Republic of Texas,
127, 132 reprinted as H.R.Doc. No. 1282, 60th Cong., 2d Sess. 127,
132.
[
Footnote 93]
On Dec. 22, 1836, President Jackson sent a message to the House
regarding possible recognition of Texas. One of the documents
accompanying the message was a report dated Aug. 27, 1836, in which
the Texas boundary was described as
"extend[ing] from the mouth of the Rio Grande on the east side,
up to its head waters; thence on a line due north until it
intersects that of the United States, and with that line to the Red
river, or the northern boundary of the United States; thence to the
Sabine, and along that river
to its mouth; and from that point
westwardly with the Gulf of Mexico to the Rio Grande."
H.R.Exec.Doc. No. 35, 24th Cong., 2d Sess. 11. (Emphasis added.)
While this report was written before the Texas boundary statute was
passed, it again illustrates the lack of concern over a seaward
boundary.
[
Footnote 94]
Convention Between the United States of America and the Republic
of Texas, for marking the boundary between them, Apr. 25, 1838, 8
Stat. 511. The Journal of the Joint Commission which conducted the
survey stated:
"[W]e established the point of beginning of the boundary between
the United States and the republic of Texas at a mound on the
western bank of the junction of the river Sabine with the sea. . .
."
S.Doc. No. 199, 27th Cong., 2d Sess. 59.
[
Footnote 95]
S.Doc. No. 341, 28th Cong., 1st Sess. 55, 56.
[
Footnote 96]
See, e.g., speech of Representative Severance of Maine,
Cong.Globe, 28th Cong., 2d Sess., App. 369-370; speech of
Representative McIlvain of Pennsylvania,
id. at 373.
[
Footnote 97]
Representative Haralson of Georgia, speaking to the Joint
Resolution, said:
"If it should turn out that, by receiving the entire limits of
Texas, as defined in her act, we acquired more territory than we
could rightfully hold, having a just regard to the rights of other
nations, all that is necessary to be done is to surrender the
overplus. The Texian act of Congress, approved December 19, 1836, I
have little doubt, defines correctly the boundary of that republic.
If not, any imaginable difficulty may be adjusted if you adopt one
of these resolutions, which provides for the consent of Texas to
our settlement of the boundaries."
Cong.Globe, 28th Cong., 2d Sess., App. 193, 195.
[
Footnote 98]
Representative Rayner of North Carolina, speaking to the Joint
Resolution, said:
"Texas claims the country on the east of the Del Norte, from its
mouth to its source. She has laid down this as her boundary in her
constitution. She is to transfer to this government, or retain to
herself, all the unappropriated lands within the limits of her
republic. She has defined these limits; and it is with Texas,
claiming territory as extending to the Del Norte in its whole
length, that you propose to make the contract. It may be said that
this question of boundary must be left to future negotiation with
Mexico. But will not this government, if Texas is now annexed, with
her definition of boundary, be precluded from making any
concessions to Mexico? Will not any compromise as to boundary be
resisted by Texas as a breach of faith towards her? She might say
that Texas had defined her own limits; that with Texas, as thus
bounded, we had contracted for her admission into the Union; and
that this government was bound by every consideration of faith and
honor to see that Texas should not be again mutilated. . . ."
"Whether this reasoning be founded in justice or not, there is
some plausibility in it. . . ."
Id. at 410, 411-412. Similarly Senator Breese of
Illinois, speaking to the 1844 Treaty, had said:
"The limits of Texas are to be adjusted hereafter. But we have
acknowledged the limits as defined in the act of the Texian
Congress of 1836, and as delineated on the map accompanying the
documents, as extending to the Del Norte. And why do I say so?
Because we did, in 1837, with a full knowledge of these declared
boundaries, acknowledge the independence of Texas as a State, with
that act of her Congress then, and as now, in full force; and which
acknowledgment received the vote of the senator from Missouri. But
this is a small matter, and can be readily adjusted with Mexico,
should we encroach upon her rights. We get a title to all Texas,
rightfully ours in virtue of her sovereignty. We ask no more -- no
less."
"The senator says that he is for the recovery of [t]he province
of Texas -- Spanish Texas -- the Texas of La Salle. So am I, Mr.
President; and for as much more as the 'Republic' of Texas can
lawfully claim."
Cong.Globe, 28th Cong., 1st Sess., App. 537, 540.
Senator Walker of Mississippi, commenting on the 1844 Treaty,
had placed his approval of the Boundary Act on both grounds.
Id. at 548-557.
[
Footnote 99]
Letter from Andrew J. Donelson to James Buchanan, Apr. 12, 1845,
12 Manning, Diplomatic Correspondence of the United States:
Inter-American Affairs, 1831-1860 (1939), 400-401.
[
Footnote 100]
The treaty provided as follows:
"The boundary line between the two republics shall commence in
the Gulf of Mexico, three leagues from land, opposite the mouth of
the Rio Grande, otherwise called Rio Bravo del Norte, or opposite
the mouth of its deepest branch, if it should have more than one
branch emptying directly into the sea; from thence up the middle of
that river, following the deepest channel, where it has more than
one, to the point where it strikes the southern boundary of New
Mexico; thence, westwardly, along the whole southern boundary of
New Mexico (which runs north of the town called Paso) to its
western termination; thence, northward, along the western line of
New Mexico, until it intersects the first branch of the River Gila;
(or if it should not intersect any branch of that river, then to
the point on the said line nearest to such branch, and thence in a
direct line to the same;) thence down the middle of the said branch
and of the said river, until it empties into the Rio Colorado;
thence across the Rio Colorado, following the division line between
Upper and Lower California, to the Pacific Ocean."
By this treaty, the United States thus not only maintained the
Texan claim to the territory between the Nueces and the Rio Grande,
but also acquired from Mexico the whole of New Mexico, part of
which Texas had claimed by its boundary statute. To settle the
conflict thus created between the United States and Texas to that
portion of New Mexico, the United States in 1850 paid Texas
$10,000,000 to relinquish its claim to the area, 9 Stat. 446,
thereby consummating the final step in the establishment of Texas'
disputed land boundaries.
See diagram, p.
363 U. S. 65,
post.
The Act provided as follows:
"The State of Texas will agree that her boundary on the north
shall commence at the point at which the meridian of one hundred
degrees west from Greenwich is intersected by the parallel of
thirty-six degrees thirty minutes north latitude, and shall run
from said point due west to the meridian of one hundred and three
degrees west from Greenwich; thence her boundary shall run due
south to the thirty-second degree of north latitude; thence on the
said parallel of thirty-two degrees of north latitude to the Rio
Bravo del Norte, and thence with the channel of said river to the
Gulf of Mexico."
It is suggested that the seaward boundary of Texas was thereby
fixed at the edge of the Gulf. But Texas' western boundary south of
New Mexico had already been definitively fixed by the Treaty of
Guadalupe Hidalgo.
Post, p.
363 U. S. 60-61.
Since the Treaty had fully supported Texas' claim to that area,
there was nothing to compromise in 1850. By contrast, the portion
of the 1848 boundary which encompassed not only eastern New Mexico,
to which Texas had a very doubtful claim, but also western New
Mexico and California, which it had never claimed, obviously was
not pressed against Mexico on Texas' behalf, and was not intended
to validate its claim to eastern New Mexico. Thus, the 1850
Compromise could be concerned only with the latter area. Nothing in
United States v. Texas, 162 U. S. 1,
militates to the contrary. The concluding phrase of the Act,
describing the portion of Texas' boundary south of New Mexico was
unnecessary to the purposes of the Act and could not, without
Texas' consent, affect the seaward boundary previously fixed for
it.
[
Footnote 101]
Papers of Nicholas P. Trist (Library of Congress 1917), Vol. 33,
folio 62071. The quotation is from letter of Secretary of State
Buchanan to John Slidell, Nov. 10, 1845. S.Exec.Doc. No. 52, 30th
Cong., 1st Sess. 78.
[
Footnote 102]
See also 5 Miller,
op. cit., supra at 315, n.
1. While the United States demanded and obtained as a war indemnity
a large amount of territory west of Texas' claimed boundaries
extending to the Pacific coast,
see note 100 supra, that fact never
obscured this country's firm contention that as to Texas'
southwestern boundary -- lying along the Rio Grande from the Gulf
to what is now New Mexico -- the Texan claim based on its 1836
Boundary Act must be maintained against Mexico.
[
Footnote 103]
10 Stat. 1031. It is noteworthy that the boundary commissioners
appointed at that time to survey the three-league boundary
reported:
"Lieut. Wilkinson, in command of the brig Morris, repaired at
the appointed time to the mouth of the river and made soundings . .
. to trace the boundary, as the treaty, required, 'three leagues
out to sea.'"
1 Emory, Report on the United States and Mexican Boundary Survey
(1857), 58. This is in marked contrast to the notes of the
surveyors of the boundary between Texas and the United States
established by the 1838 Convention.
See note 94 supra.
[
Footnote 104]
See the following boundary conventions between the
United States and Mexico: July 29, 1882, 22 Stat. 986; Nov. 12,
1884, 24 Stat. 1011; Dec. 5, 1885, 25 Stat. 1390; Feb. 18, 1889, 26
Stat. 1493; Mar. 1, 1889, 26 Stat. 1512; Aug. 24, 1894, 28 Stat.
1213; Oct. 1, 1895, 29 Stat. 841; Nov. 6, 1896, 29 Stat. 857; Oct.
29, 1897, 30 Stat. 1625; Dec. 2, 1898, 30 Stat. 1744; Nov. 21,
1900, 31 Stat. 1936; Mar. 20, 1905, 35 Stat. 1863.
[
Footnote 105]
Letter of Secretary of State Buchanan to Mr. Crampton, British
Minister, Aug. 19, 1848, Manning, Diplomatic Correspondence of the
United States, Inter-American Affairs, 1831-1860, VII, 31-32;
Letter from Luis G. Cuevas, Mexican Foreign Minister, to Percy W.
Doyle, British Charge d'Affaires in Mexico, photostatic copy of
translation in Public Record Office, London, Gov.Br. p. 403.
[
Footnote 106]
Foreign Relations of the United States, 1875, Pt. I, 649-650. It
is difficult to understand why, if jurisdiction for revenue
purposes had been extended by statute to four leagues, the boundary
was established only at three leagues if it was drawn solely for
that purpose. It is asserted, however, that Mexico concluded a
series of treaties with other countries in the latter half of the
nineteenth century which established jurisdiction for revenue
purposes at three leagues. Treaty between Mexico and China, Art.
XI, 1 Laws and Regulations on the Regime of the High Seas (United
Nations Legislative Series) 147; Treaty between Mexico and the
Dominican Republic, Art. 15,
id. at 153, 154; Treaty
between Mexico and El Salvador, Art. XXI,
id. at 156;
Treaty between Mexico and France, Art. 15,
id. at 169,
170; Treaty between Mexico and Germany, Art. VIII,
id. at
170; Treaty between Mexico and the Netherlands, Art. 6,
id. at 171; Treaty between Mexico and Norway and Sweden,
Art. VII,
id. at 171-172; Treaty between Mexico and the
United Kingdom, Art. IV,
id. at 172. Only some of those
Treaties set the limit at three leagues; others set it at twenty
kilometers, which is equivalent to approximately 10.8 nautical
miles, or closer to four leagues than to three. In any event, the
Mexican Treaties indicate only that Mexico chose to limit the
rights she would assert as against other nations, and do not relate
to the rights created between it and the United States by the
Treaty of Guadalupe Hidalgo.
[
Footnote 107]
Letter from Mr. De L. Boal, American Charge d'Affaires
ad
interim at Mexico City, to Senor General Hay, Mexican Minister
for Foreign Affairs, June 3, 1936, 99 Cong.Rec. 3623-3624.
In testifying before Congress on the Submerged Lands Act,
representatives of the State Department reiterated these various
grounds, 1953 Senate Hearings 1056-1057, 1077-1078.
See also
id. at 321-323, 670; 99 Cong.Rec. 2513-2514, 2569, 2893-2895,
3041-3042. Their concern was to avert a congressional determination
that a three-league territorial boundary had been fixed for Texas
which might be embarrassing to this country in its foreign
relations. However, as we have pointed out, pp.
363 U.S. 30-36,
ante, there is
no necessary conflict between the existence of a three-league
territorial boundary for domestic purposes and the maintenance of
the Executive's policy on the limit to which this country will
assert rights in the marginal seas as against other nations.
Despite the State Department's contentions with respect to the
Treaty, Congress clearly left that question, like all other matters
bearing on the determination of boundaries, an open question to be
judicially resolved.
[
Footnote 107a]
^107 A. 2 Stat. 701, 702. The terms of this Act were practically
identical with those of the Louisiana Enabling Act, passed the year
before. 2 Stat. 641.
[
Footnote 108]
In precise modern usage, the term "shore" denotes the line of
low-water mark along the mainland, while the term "coast" denotes
the line of the shore plus the line where inland waters meet the
open sea. It is obvious that the term "coast" was used in
Louisiana's Act of Admission in a nontechnical sense to denote what
is actually the shore. The Acts admitting both Mississippi and
Alabama contain similar provisions for the inclusion of all islands
within six leagues of the shore, despite the fact that Great
Britain had proclaimed those areas in 1763 to include all islands
within six leagues of the "sea coast." And, in
Louisiana v.
Mississippi, 202 U. S. 1,
202 U. S. 47,
this Court held that the "coast" referred to in Louisiana's Act of
Admission was the St. Bernard marshes on the mainland, and not the
Chandeleur Islands, which might be thought to be the seaward limit
of inland waters.
The Government concedes that all the islands which are within
three leagues of Louisiana's shore, and therefore belong to it
under the terms of its Act of Admission, happen to be so situated
that the waters between them and the mainland are sufficiently
enclosed to constitute inland waters. Thus, Louisiana is entitled
to the lands beneath those waters quite apart from the affirmative
grant of the Submerged Lands Act, under the rule of
Pollard's Lessee v.
Hagan, 3 How. 212. Furthermore, since the islands
enclose inland waters, a line drawn around those islands and the
intervening waters would constitute the "coast" of Louisiana within
the definition of the Submerged Lands Act. Since that Act confirms
to all States rights in submerged lands three miles from their
coasts, the Government concedes that Louisiana would be entitled
not only to the inland waters enclosed by the islands, but to an
additional three miles beyond those islands as well. We do not
intend, however, in passing on these motions, to settle the
location of the coastline of Louisiana, or that of any other
State.
[
Footnote 109]
8 Stat. 80, 82.
[
Footnote 110]
Circular sent by Jefferson to United States Attorneys, ms. in
National Archives, Record Group 59.
[
Footnote 111]
Ibid.; see also letter from Jefferson to George
Hammond, British Minister, Nov. 8, 1793; H.Exec.Doc.No.324, 42d
Cong., 2d Sess. 553; letter from Jefferson to Edmond Genet, French
Minister, American State Papers, 1 Foreign Relations 183.
[
Footnote 112]
While, as we have observed, Congress may fix state boundaries
independently of Executive policy on the extent of territorial
waters, subject to any limitations imposed by that policy, the
Treaty of Paris does not present such a situation. It represents an
exercise of purely Executive power (prior, in fact, to the
establishment of the Federal Constitution) in setting a national
boundary with another nation.
[
Footnote 113]
Ga.Code Ann. § 15-101, derived from Act 1788, Cobb, 150;
Watkins' Dig. 713-762, as amended, Acts 1916, p. 29.
[
Footnote 114]
". . . jusqu'a son embouchure dans la mer ou golfe de Mexique,
environ les 27 Degrez d'elevation du pole septentrional. . . ."
2 Margry, Decouvertes et Etablissements des Francais dans
L'Ouest et dans le Sud de L'Amerique Septentrionale (1877)
191-192.
[
Footnote 115]
2 Margry,
op. cit., supra, at 186, 190-191.
[
Footnote 116]
Fragment of a letter of La Salle, 2 Margry,
op. cit.,
supra at 199 (The Mississippi runs as far as the 27th degree,
where it discharges into the sea); Letters Patent issued on Sept.
14, 1712, by Louis XIV to his Secretary, Antoine Crozat, for
exclusive trading in Louisiana, in Greenhow, Memoir, Historical and
Political, on the Northwest Coast of North America, S.Doc.No.174,
26th Cong., 1st Sess. 150 (Louisiana extends along the Mississippi
"from the seacoast to the Illinois country"); Definitive Treaty of
Peace between Great Britain, Spain, and France, signed at Paris,
Feb. 10, 1763, Art. VII, 15 Parliamentary History of England 1291,
1296 (domains of Britain and France separated by a line drawn along
the middle of the river Iberville, and lakes Maurepas and
Pontchartrain "to the sea").
[
Footnote 117]
13 Cong.Deb., 24th Cong., 2d Sess., pt. II, App. 226.
[
Footnote 118]
Id. at 229.
[
Footnote 119]
Treaty of Utrecht, 1713, between Great Britain and France, 17
Journal of the House of Commons 329; Preliminary Treaty of Peace
between Great Britain, Spain, and France, Nov. 3, 1762, 15
Parliamentary History of England 1241, 1243; Definitive Treaty of
Peace between Great Britain, Spain, and France, Feb. 10, 1763, 15
Parliamentary History of England 1291, 1295; Definitive Treaty of
Peace and Friendship between Britain and France at Versailles,
Sept. 3, 1783, 39 Journal of the House of Commons, 718, 719.
[
Footnote 120]
Convention between Great Britain and Spain at The Escurial, Oct.
28, 1790, 46 Journal of the House of Commons 30.
[
Footnote 121]
Estevan de Ferrater, Codigo de Derecho Internacional (Barcelona
1846), Vol. I, p. 488.
[
Footnote 122]
Ernest Nys, Le Droit International, Vol. I, p. 499.
[
Footnote 123]
Certain correspondence between the United States and Spain
involving a dispute over the eastern and western limits of
Louisiana also indicates that Spain believed the territory ended at
the Gulf of Mexico. Letter from Pedro Cevallos, Spanish Foreign
Minister, to Charles Pinckney and James Monroe, United States
Envoys, Apr. 13, 1805, American State Papers, 2 Foreign Relations
660, 662; letter from Luis de Onis, Spanish Ambassador, to John
Quincy Adams, United States Secretary of State, Dec. 29, 1817,
American State Papers, 4 Foreign Relations 452, 453; letter from de
Onis to Adams, Mar. 23, 1818,
id. at 480, 484.
[
Footnote 124]
8 Stat. 200, 202.
[
Footnote 125]
Treaty of Amity, Settlement, and Limits (between the United
States and Spain), Feb. 22, 1819, 8 Stat. 252; Treaty of Limits
(between the United States and Mexico), Jan. 12, 1828, 8 Stat. 372;
Convention Between the United States of America and the Republic of
Texas, for marking the boundary between them, Apr. 25, 1838, 8
Stat. 511.
[
Footnote 126]
See note 94
supra.
[
Footnote 127]
Among the acts alleged were
"the passing and enforcing of laws regulating fishing, trawling
and dredging of said submerged lands, the granting of leases for
the cultivation, propagation and taking of oysters, fish and
shrimp, for the dredging and removal of sand, gravel and shells,
and for the leasing and development of said lands for oil, gas and
other minerals."
The answer further alleged that, prior to the discovery of oil
and gas under said lands, the United States had never claimed any
interest in them, and that it had recognized Louisiana's title
thereto when, on numerous occasions, it
"requested the Chief Executive of the State to secure the
passage of laws which would permit the federal government to
acquire sites therein for game and fish preserves and for light
houses, jetties and other aids to navigation."
[
Footnote 128]
15 Parliamentary History of England 1291, 1296.
[
Footnote 129]
2 White, New Collection of Laws, Charters and Local Ordinances
of Great Britain, France and Spain (1839), 292, 293.
[
Footnote 130]
39 Journal of the House of Commons 722, 723.
[
Footnote 131]
1 Richardson, Messages and Papers of the Presidents 465.
[
Footnote 132]
2 Stat. 734.
[
Footnote 133]
3 Stat. 348.
[
Footnote 134]
3 Stat. 472.
[
Footnote 135]
We express no opinion at this time on the location of
Mississippi's coastline.
See note 108 ante.
[
Footnote 136]
2 Stat. 734.
[
Footnote 137]
3 Stat. 608.
[
Footnote 138]
3 Stat. 489, 490.
[
Footnote 139]
We express no opinion at this time on the location of Alabama's
coastline.
See note
108 ante.
[
Footnote 140]
On June 5, 1950, the date of this Court's decision in the
Louisiana and Texas cases, all coastal States were put on notice
that the United States was possessed of paramount rights in
submerged lands lying seaward of their respective coasts. The
Submerged Lands Act, passed in 1953, by which parts of those lands
were relinquished to the States, also forgave any monetary claims
arising out of the States' prior use of the lands so relinquished.
But the United States remains entitled to an accounting for all
sums derived since June 5, 1950, from lands not so
relinquished.
Mississippi contends that it is not liable for an accounting,
since it was never party to a suit decreeing the United States'
rights in offshore lands. However, principles announced in the 1950
Louisiana and Texas cases are plainly applicable to all coastal
States, and Mississippi was put on notice by the decrees in those
cases.
A fortiori, the similar contention of Louisiana,
the defendant in the 1950 Louisiana case, must be overruled.
[
Footnote 141]
In light of these conclusions we do not reach the question
whether Alabama's cross-bill constitutes an "unconsented" suit
against the United States.
[
Footnote 142]
The same disposition is made of the similar averment in
Alabama's answer. Texas' motion for similar relief and for a
severance is rendered moot by our decision as to it.
[
Footnote 143]
The alternative motion of Louisiana, contained in its answer to
the original complaint herein, to transfer the case as to it to the
United States District Court in Louisiana is denied for the same
reasons, and on the further ground that we have already determined
that the issues as to all the defendant States should be heard
together in this Court.
354 U. S. 515.
MR. JUSTICE BLACK, concurring in part and dissenting in
part.
I concur in the Court's judgment that Texas owns the belt of
submerged lands extending three marine leagues from that State's
coastline into the Gulf of Mexico (including oil and other
resources), but dissent from denial of like claims by Louisiana,
Mississippi and Alabama.
The claims of all these States depend on our interpretation and
application of the Submerged Lands Act,
Page 363 U. S. 86
passed in 1953. [
Footnote 2/1]
Two bills previously passed by Congress, substantially the same as
the 1953 Act, were vetoed by the President. [
Footnote 2/2] After the first veto, we refused to hold
that California, Texas, and Louisiana owned or had ever owned legal
title to the submerged lands adjacent to their coasts. We held that
the United States, not the States, had paramount rights in and
power over such lands and their products, including oil. [
Footnote 2/3] Congress accepted our
holdings as declaring the then-existing law -- that these States
had never owned the offshore lands -- but believed that all coastal
States were equitably entitled to keep all the submerged lands they
had long treated as their own, [
Footnote 2/4] without regard to technical legal
ownership or boundaries. Accordingly, Congress exercised its power
by passing the Submerged Lands Act in an attempt to restore the
"rights and powers of the States and those holding under [them]
. . . as they existed prior to the
Page 363 U. S. 87
decision of the Supreme Court of the United States in the
California case. [
Footnote
2/5]"
To accomplish this purpose the Act first provides for an
outright grant to all the coastal States of a boundary three
geographical miles from their coastlines. [
Footnote 2/6] The Gulf States, however, were not
satisfied with three miles but claimed that special circumstances
entitled them to three leagues (about 10 1/2 miles) or more. They
urged, among other things, that claims of the Gulf States and their
predecessors in title had always been more expansive than claims of
coastal States in other parts of the country; that when admitted to
the Union their constitutions contained definitions which, properly
interpreted, described
Page 363 U. S. 88
boundaries extending three to six leagues seaward; that the Gulf
States had not only claimed these more expansive boundaries, but
had always exercised possessory and ownership rights over these
marginal lands and their products at will without regard to any
three-mile limitations; and that historically the United States had
never questioned any of their claims until disputes arose regarding
oil leases during the late 1930's. [
Footnote 2/7] Moved by these arguments,
Page 363 U. S. 89
strongly supported by evidence and concessions, Congress did not
limit its grant to the Gulf States to three miles of submerged
lands, but granted a belt extending all the way to each State's
"boundaries . . . as they existed at the time such State became
a member of the Union . . . , but in no event . . . more than . . .
three marine leagues into the Gulf of Mexico. . . ."
43 U.S.C. § 1301(b). We have upheld the power of Congress to
convey these marginal lands to the States.
Alabama v.
Texas, 347 U. S. 272.
The statute neither defines the kind of "boundary" which is to
measure Congress' grants to these States nor particularizes the
criteria for deciding it. We may agree with the Government that the
term "boundary" was used here in its usual sense to mean the limit
of territory, which, in the case of a coastal boundary, would mean
the outer limit of the territorial sea. But this does not get us
very far in determining the location of these States' boundaries.
For a number of reasons, I cannot accept the Government's
contention that each State must show a "legal" or "legally
accepted" boundary as of the date it became a member of the Union.
I cannot see how we can be expected retroactively to reconstruct a
technically defined legal boundary, extending out into the lands
under the Gulf, if the States never technically owned any of these
lands. In
United States v. California, 332 U. S.
19, and the cases which followed it, this Court held
that the States of California, Texas and Louisiana did not own or
have title to the offshore lands they claimed. If we were now to
hold that these States must prove technical title as of the early
1800's in order to satisfy the Submerged Lands Act, and that they
have succeeded in doing so, we would, in effect, be overruling our
prior cases, cases expressly accepted by Congress as declaring the
law when the 1953 Act was passed. I cannot believe that Congress
intended us to try to use again the same "legal" test of
ownership
Page 363 U. S. 90
we had applied in holding that the States did not own any part
of their marginal lands, particularly since Congress passed the
1953 Act to allow the States' rights to be determined under
established equitable, not strictly legal, principles. The opinion
of MR. JUSTICE DOUGLAS forcefully points out the difficulty, if not
the impossibility, of finding that any of these States ever had a
technical legal boundary out in the ocean. Even if a technical
determination of boundaries were intended by Congress, rather than
attempt that impossible task, I would prefer to return the Act to
Congress for a more precise expression of its will.
Cf. United
States v. Alcea Band of Tillamooks, 329 U. S.
40,
329 U. S. 54
(concurring opinion);
Northwestern Bands of Shoshone Indians v.
United States, 324 U. S. 335,
324 U. S.
354-358 (concurring opinion).
Moreover, the Submerged Lands Act prescribes no standards for
determining a strictly "legal" boundary according to the
conveyancer's art. There are, of course, no markers out in the Gulf
of Mexico to show where the boundaries were when the States were
admitted. Since some were admitted anywhere from 140 to 150 years
ago, there are no living witnesses to testify where their
boundaries were at that time. But, despite these difficulties, it
is our duty to give effect to the congressional act as best we can.
It is therefore my view that, since we cannot look to legalistic
tests of title, we must look to the claims, understandings,
expectations, and uses of the States throughout their history. This
is because of the congressional expressions, stated time and time
again, that the Act's purpose was to restore to the States what
Congress deemed to have been their historical rights and powers.
Nor can I accept the Government's argument that these States'
interests in the marginal seas must be determined in accord with
the national policy of foreign relations. Everything in the very
extended congressional hearings and reports refutes any such idea.
Instead,
Page 363 U. S. 91
these sources indicate that Congress passed the Act to apply
broad principles of equity -- not as we see it, but as Congress saw
it. [
Footnote 2/8] In determining
the boundaries of these States, we must, I think, recognize and
follow the same principles if we are to effectuate the
congressional purpose that produced this Act. That is what I would
do. A few references to the legislative background will illustrate
the guides Congress intended we should apply in interpreting its
Act.
Senator Ellender of Louisiana invoked the equitable sense of
Congress. [
Footnote 2/9] Senator
Holland of Florida, the author of the bill, urged Congress to "look
into the equities
Page 363 U. S. 92
and the moral considerations that are involved. . . ." [
Footnote 2/10] The presiding officer of
the Senate Committee, who conducted the hearings and reported the
bill, told the Congress that "justice, equity, and the best
interests of the Nation will be served by the enactment of this
legislation." [
Footnote 2/11] The
Senate Committee Report on an earlier bill, printed and adopted as
a part of the Report on the 1953 Act, declared that
"The Congress, in the exercise of its policy powers, is not and
should not be confined to the same technical rules that bind the
courts in their determination of legal rights of litigants. . . .
The committee believes that, as a matter of policy in this
instance, the same equitable principles and high standards that
apply between individuals should be applied by Congress as between
the National Government and the sovereign states. [
Footnote 2/12]"
The very last paragraph of the report on the bill referred to it
as
"an act of simple justice to each of the 48 States in that it
reestablishes in them as a matter of law that possession and
control of the lands beneath navigable waters inside their
boundaries which have existed in fact since the beginning of our
Nation. It is not a gift; it is a restitution. [
Footnote 2/13]"
Congress has thus repeatedly emphasized its desire to have the
States' rights in these submerged lands determined not under
"technical rules" but, as the Senate Committee said, in accordance
with "equitable principles and high standards" of justice.
[
Footnote 2/14] To point out
specifically
Page 363 U. S. 93
what it meant, that Committee referred to three similar cases of
this Court. One, which is illustrative, was
Indiana v.
Kentucky, 136 U. S. 479.
[
Footnote 2/15] That case
involved a boundary dispute between Indiana and Kentucky. The
crucial question was the determination in 1890 of the location of
the Kentucky boundary when Kentucky became a State in 1792. That
same kind of backward-looking determination of boundaries is
involved here with reference to the Gulf States. In the
Indiana-Kentucky case, as here, there were no satisfactory markers,
and testimony of living witnesses was deemed to be of little value.
There was much evidence in the
Indiana-Kentucky case,
however, that Kentucky had exercised authority over the disputed
territory since it first became a State, and that Indiana had never
challenged the boundary or the authority of Kentucky. Emphasizing
the great value of that evidence, this Court said:
"This long acquiescence in the exercise by Kentucky of dominion
and jurisdiction over the island is more potential than the
recollection of all the witnesses produced on either side. . . . It
is a principle of public law, universally recognized, that long
acquiescence in the possession of territory, and in the exercise of
dominion and sovereignty over it, is conclusive of the nation's
title and rightful authority."
136 U.S. at
136 U. S. 510.
The Court went on to quote the following from
Rhode
Island v. Massachusetts, 4 How. 591,
45 U. S.
639,
"For the security of rights, whether of state or individuals,
long possession under a claim of title is protected; and there is
no controversy in which this great principle may be invoked with
greater justice and propriety than in a case of disputed
boundary."
136 U.S. at
136 U. S.
511.
Page 363 U. S. 94
Accepting, as I think we should, the desire of Congress to have
the ancient boundaries of these Gulf States determined on the basis
of their long-unchallenged claims, rather than by the use of subtle
and refined legal inferences, I am led to the conclusion that the
other Gulf States, as well as Texas, are entitled to prevail over
the Government here. It is admitted that, prior to 1937, the United
States never claimed any title to, or exercised any possession
over, any part of these marginal lands, either within or without
three-mile limits, except under grants from the States. On the
other hand, each of the Gulf States began to exercise acts of
possession, ownership, dominion and sovereignty over the marginal
belt from the time of admission into the Union, without regard to
any three-mile limit. [
Footnote
2/16] The hearings of Congressional Committees show and their
reports assert that very large sums of money have been spent by the
States and their public agencies and grantees in the development
and improvement of the marginal submerged lands adjacent to the
States' borders. [
Footnote 2/17]
Not only have the States' possession,
Page 363 U. S. 95
dominion and sovereignty over these marginal belts been open and
notorious, but that is coupled with the fact that for much more
than a century federal departments and agencies not only acquiesced
in but unequivocally recognized the States' rightful claims to
these belts. [
Footnote 2/18] It
is conceded that, in many instances, the Government itself has
deemed it necessary to acquire title from these States before
attempting to exercise any power of its own. [
Footnote 2/19] There is nothing to indicate that
the claims or uses of the marginal lands were ever limited to three
miles. Certainly there is no evidence before us, and there was none
before the Congress, that, up to 1937, the United States had ever
attempted to limit the sovereignty of the Gulf States within
boundaries three miles from their coasts. On the other hand,
evidence considered by the Congressional Committees and argued to
us provides ample support for holding that the Gulf States did not
consider their boundaries as limited to three miles.
Page 363 U. S. 96
The constitutions of all these States defined their boundaries
when they were admitted into the Union. The first Texas
Constitution kept in force the same boundary, three leagues into
the Gulf, claimed for the Republic of Texas before it became a
State. [
Footnote 2/20] This
definition was presented to Congress as a reason why Texas should
be granted three leagues. The constitutions of all of the other
States involved here defined their coastal boundaries as extending
from one Gulf point to another "including all islands" three or six
leagues from the shore or coastline. The legislative history of the
Submerged Lands Act shows that these definitions were repeatedly
called to the attention of Congress as a reason why these Gulf
States should be granted three leagues or more. [
Footnote 2/21] From the standpoint of the paper
boundary
Page 363 U. S. 97
claims, Texas urges, on the basis of the more precise definition
of its seaward boundary, that it has a stronger case than the other
States. Although all these paper claims were considered by
Congress, none was treated as decisive of the question of state
boundaries, as is clearly shown by Congress' refusal to make Texas
and Florida [
Footnote 2/22] the
exclusive beneficiaries of this Act simply because their
constitutions had specifically defined a three-league seaward
boundary. Nevertheless, each constitutional definition provides
some color of title for each State's claim of a boundary extending
at least three leagues from its coastline. The paper claims of each
State, therefore, merely add some weight to the overwhelming fact,
as Congress saw it, that, for more than 100 years, all the Gulf
States exercised the only possession, dominion and sovereignty over
the submerged lands adjacent to their coastlines that was ever
exercised at all. The admitted facts with reference to these state
boundaries thus entitle all the States to three-league marginal
belts, if we fairly apply the equitable principles of prescription
under which Congress declared this controversy between the Federal
Government and the Gulf States should be settled. [
Footnote 2/23]
Page 363 U. S. 98
The result of the Court's holding in this and the Florida case
[
Footnote 2/24] is that Texas and
Florida will have marginal belts that uniformly extend three
leagues from their shores. The other Gulf States, however, are not
so fortunate. Their boundaries will extend only three miles in some
places. The Government concedes, however, that their boundaries
extend three miles beyond the coastline of their islands -- which
may be as far as six leagues from the mainland. Thus, Louisiana,
Mississippi and Alabama will have irregular saw-toothed boundaries
projecting six leagues at some points and retreating to within
three miles of the mainland at other points. This condition follows
from the Government's concession that all lands between the States'
islands and the mainland are lands beneath inland waters. The mere
exercise of jurisdiction over such jagged boundaries as these
raises serious problems. Moreover, there is an element of
fundamental unfairness about granting Texas and Florida ownership
and sovereignty over three-league marginal belts while denying it
to their sister States bordering the Gulf of Mexico. This is bound
to frustrate the intent of Congress to settle this whole Gulf
States controversy at this time.
The unfairness of the Court's result is particularly emphasized
when we consider the plight in which it leaves Louisiana. One of
the grounds that Congress assigned for its desire to restore these
lands to the States was its strong belief that the States rather
than the Federal Government should exploit their offshore oil. This
desire rested on two conclusions: (1) that the States would do it
better and more effectively for the interests of the public at
large, [
Footnote 2/25] and (2)
that it would be unconscionable
Page 363 U. S. 99
to take this oil away from the States after they had been solely
responsible for bringing it into the public use. [
Footnote 2/26] The record shows that Louisiana had
leased land out more than three leagues from its coastline as early
as 1920. [
Footnote 2/27] There
are still oil wells out there. For many years, royalties from those
wells have gone into the public treasury of the Louisiana. This
income has become a part of the very life of the State. [
Footnote 2/28] It constitutes a large
part
Page 363 U. S. 100
of the support of the State's public school system. To take
these marginal lands away from the Louisiana and give Texas the
lands it claims -- when Texas apparently has no wells at all beyond
the three-mile limit -- seems to me completely incompatible with
the kind of justice and fairness that the Congress wanted to bring
about by this Act. Moreover, I am not at all sure but that this
result will completely upset the congressional desire to bring
about once and for all a settlement of this longstanding
controversy by passage of the Submerged Lands Act. [
Footnote 2/29]
Nothing in the Act itself indicates that Texas was to be given
any more consideration in this case than Louisiana, Mississippi and
Alabama. Had Congress wanted to give the land to Texas and refuse
to give it to the other States, it easily could have done so. In
fact, this was specifically suggested to Congress by the Attorney
General of the United States, and the Congress rejected it.
[
Footnote 2/30] Time and again,
Congress emphasized that its interests were focused on the problem
of these lands because of the unfairness it saw in taking them from
the Gulf States.
As Congress indicated, it is time that the problem be solved,
the title be quieted and the controversy be stilled. [
Footnote 2/31]
Page 363 U. S. 101
In my judgment, to interpret this Act in a way which grants the
land to Texas and Florida and withholds it from the other Gulf
States simply prolongs this costly and disquieting controversy. It
will not be finally settled until it is settled the way Congress
believes is right, and I do not think Congress will believe it
right to award these marginal lands to Texas and Florida and deny
them to the other Gulf States.
[
Footnote 2/1]
67 Stat. 29, 43 U.S.C. §§ 1301-1315.
[
Footnote 2/2]
H.J.Res. 225, 79th Cong., 2d Sess., 92 Cong.Rec. 10660; S.J.Res.
20, 82d Cong., 2d Sess., 98 Cong.Rec. 6251.
[
Footnote 2/3]
United States v. Texas, 339 U.
S. 707;
United States v. Louisiana,
339 U. S. 699;
United States v. California, 332 U. S.
19.
[
Footnote 2/4]
"Therefore, in full acceptance of what the Supreme Court has now
found the law to be, Congress may nevertheless enact such
legislation as in its wisdom it deems advisable to solve the
problems arising out of the decision."
S.Rep. No. 133, 83d Cong., 1st Sess. 56, from the reprint, in
Appendix E, of S.Rep. No. 1592, 80th Cong., 2d Sess.
"ME. DANIEL. . . . We can and do accept the decisions of the
Court as the interpretation of the law as it exists today, but, by
the same token, the Congress of the United States, in placing its
interpretation on the Constitution and in deciding the equities can
write the law for the future differently from that which the Court
has found it to be at this time."
"That is what we propose in Senate Joint Resolution 13. We want
Congress to write the law for the future exactly as it was
understood and believed to be during the first 150 years of the
existence of this Nation."
99 Cong.Rec. 4080-4081.
[
Footnote 2/5]
"Finally, it is the intent and purpose of this bill to establish
the law for the future so that the rights and powers of the States
and those holding under State authority may be preserved as they
existed prior to the decision of the Supreme Court of the United
States in the California case."
S.Rep. No. 133, 83d Cong., 1st Sess. 75. This is the closing
paragraph of S.Rep. No. 1592, 80th Cong., 2d Sess., printed as an
Appendix to the Report on the 1953 Act.
See also S.Rep.
No. 133, 83d Cong., 1st Sess. 6:
"The offshore rights which are confirmed to the States and their
grantees are rights growing out of the concept of ownership and
proprietary use and development-rights which were first asserted by
the Federal Government in recent years and which it has never
exercised nor enjoyed. These rights, legally vested in the States
and their grantees by Senate Joint Resolution 13, have in fact been
enjoyed and exercised by them from the beginning of our history as
a nation until the date of the California decision."
And see Hearings before the Senate Interior and Insular
Affairs Committee on S.J.Res. 13, etc., 83d Cong., 1st Sess.
32.
[
Footnote 2/6]
"It is . . . declared to be in the public interest that . . .
title to . . . the lands beneath navigable waters within the
boundaries of the respective States . . . be . . . vested in and
assigned to the respective States. . . ."
43 U.S.C. § 1311(a).
"The term 'lands beneath navigable waters' means . . . (2) all
lands . . . seaward to a line three geographical miles distant from
the coast line of each such State. . . ."
§ 1301(a).
[
Footnote 2/7]
Moreover, at the time Louisiana and Texas extended their seaward
boundaries to 27 marine miles, the United States was not claiming
ownership or jurisdiction and control over the Continental Shelf.
Actually, some years earlier, the State Department had taken the
position that the United States had no jurisdiction over the ocean
bottom of the Gulf of Mexico beyond the territorial waters adjacent
to the coast, and that therefore it was not in a position to grant
a lease on this area. . . .
"Furthermore, the United States did not dispute the actions
taken by the two States."
H.R.Rep. No. 215, 83d Cong., 1st Sess. 25-26.
And see
363 U.S.
1fn2/18|>note 18,
infra.
See, e.g., as to Louisiana, the statement of Miss
Lucille May Grace, Register, State Land Office, Louisiana:
"[I]t strikes me as being highly incongruous that the Department
of the Interior of the Federal Government, at this late date,
should assert the slightest claim to such lands, for it was in
1908, and again in 1915, that the General Land Office of the
Department of the Interior wrote to the Federal land office of
Louisiana, said records now being a part of the records of my
office, explaining that certain lands beneath tidewaters belonged
to Louisiana by her right of sovereignty, and that the Louisiana
had made a mistake in applying 'to select such lands under the
Swamp Lands Act.' . . ."
"Let me respectfully request and urge your favorable
consideration of this resolution in order that my State and all
States, as well as the business interests of our country, who have
in the past spent such high sums of money and who plan to invest
greater sums in the future in the oil and gas development of our
natural resources, will feel assured that our claims to such areas
are recognized by all persons -- once and for all -- claims that we
have considered sacred and valid in my State since Louisiana was
admitted to the Union in 1812."
Joint Hearings before House Committee on Judiciary, Senate
Special Judiciary Subcommittee on H.R.Res. 118, etc., 79th Cong.,
1st Sess. 82-83.
[
Footnote 2/8]
Under the heading "Equity best served by establishing State
ownership," the earlier Senate Report incorporated in the Report on
the 1953 Act summarizes the equitable features involved:
"The repeated assertions by our highest Court for a period of
more than a century of the doctrine of State ownership of all
navigable waters, whether inland or not, and the universal belief
that such was the settled law, have, for all practical purposes,
established a principle which the committee believes should as a
matter of policy be recognized and confirmed by Congress as a rule
of property law."
"The evidence shows that the States have in good faith always
treated these lands as their property in their sovereign
capacities; that the States and their grantees have invested large
sums of money in such lands; that the States have received, and
anticipate receiving, large income from the use thereof, and from
taxes thereon; that the bonded indebtedness, school funds, and tax
structures of several States are largely dependent upon State
ownership of these lands; and that the legislative, executive, and
judicial branches of the Federal Government have always considered
and acted upon the belief that these lands were the properties of
the sovereign States."
"If these same facts were involved in a dispute between private
individuals, an equitable title to the lands would result in favor
of the person in possession. . . ."
S.Rep. No. 133, 83d Cong., 1st Sess. 67, reprinting S.Rep. No.
1592, 80th Cong., 2d Sess.
To the same effect is the conclusion of the 1953 Report: "By
this joint resolution, the Federal Government is itself doing the
equity it expects of its citizens."
Id. at 24.
[
Footnote 2/9]
99 Cong.Rec. 4393-4394.
[
Footnote 2/10]
Hearings before the Senate Committee on Interior and Insular
Affairs on S.J.Res. 13, etc., 83d Cong., 1st Sess. 69.
[
Footnote 2/11]
99 Cong.Rec. 4382.
[
Footnote 2/12]
S.Rep. No. 133, 83d Cong., 1st Sess. 68, 67.
And see
statement of Senator Daniel in the Hearings before the Senate
Interior and Insular Affairs Committee on S.J.Res. 13, etc., 83d
Cong., 1st Sess. 695.
[
Footnote 2/13]
Id. at 24.
[
Footnote 2/14]
Text accompanying
363 U.S.
1fn2/12|>note 12,
supra.
[
Footnote 2/15]
The other two cases were
United States v. Texas,
162 U. S. 1, and
New Mexico v. Texas, 275 U. S. 279.
S.Rep. No. 133,
supra, at 67.
[
Footnote 2/16]
See 363 U.S.
1fn2/5|>note 5,
supra.
[
Footnote 2/17]
"States and their grantees have expended millions of dollars to
build piers, breakwaters, jetties, and other structures, to install
sewage disposal systems and to fill in beaches and reclaim lands.
During the past two decades California, Louisiana, and Texas have
been leasing substantial portions of the lands in question for oil,
gas, and mineral development. California commenced such leasing in
1921 and Texas in 1926. Other States, including Washington,
Florida, Mississippi, North Carolina, and Maryland, have made
leases for like purposes. States have levied and collected taxes
upon interests in and improvements on these lands. It appears to
the committee that the States have exercised every sovereign right
incident to the utilization of these submerged coastal lands."
S.Rep.No.133, 83d Cong., 1st Sess. 64, from S.Rep.No.1592, 80th
Cong., 2d Sess. Senator Holland placed the figure at "billions of
dollars of invested money." Hearings before the Senate Interior and
Insular Affairs Committee on S.J.Res. 13, etc., 83d Cong., 1st
Sess. 74.
[
Footnote 2/18]
President Truman, in his veto message of S.J.Res. 20, 82d Cong.,
2d Sess., acknowledged that,
"Even so careful and zealous a guardian of the public interest
as the late Secretary of the Interior, Harold Ickes at first
assumed that the undersea lands were owned by the States."
H.R.Rep.No.215, 83d Cong., 1st Sess. 104. And the Senate Report
noted that
"The facts are conclusive that, at least prior to 1937, the
policy of the executive departments of the Government has
consistently been to recognize State ownership of the submerged
lands, whether inland or not, within the territorial jurisdiction
of the State."
S.Rep.No.133, 83d Cong., 1st Sess. 65, from S.Rep.No.1592, 80th
Cong. 2d Sess. A letter to this effect written by Secretary Ickes
in 1933, was read at the Hearings before the Senate Interior and
Insular Affairs Committee on S.J.Res. 13, etc., 83d Cong., 1st
Sess. 68.
And see 363 U.S.
1fn2/7|>note 7,
supra, and accompanying text.
[
Footnote 2/19]
Senator Holland mentioned an incomplete list prepared by
California of 195 such instances involving all coastal States, and
he discussed two specific grants from Florida to the Federal
Government. Hearings before the Senate Interior and Insular Affairs
Committee on S.J.Res. 13, etc., 83d Cong., 1st Sess. 63-64, 65, 66,
and see Senator Daniel's statement at 233.
[
Footnote 2/20]
Texas Const.1845, Art. XIII, § 3, Vernon's Ann.St.Tex.,
continued in effect "All laws . . . in force in the Republic of
Texas," thus including the 1836 Boundary Act. Republic of Texas
Boundary Act, December 19, 1836, 1 Laws of the Republic of Texas
133 (3 leagues).
[
Footnote 2/21]
These provisions are found in Ala.Const., 1819, preamble 6
(leagues); Miss.Const., 1817, preamble (6 leagues); La.Const.,
1812, LSA-Const., preamble (3 leagues).
From the beginning of the congressional hearings on the matter
of the submerged lands, it has been clear to Congress that all the
Gulf States' constitutional definitions of their boundaries have
been a basis of their claims, without regard to the slight
differences in language. These claims reappeared throughout the
hearings. For illustration, an eight-page opinion of Dean Borchard
of Yale appeared as "Appendix B" to S.Rep.No.1260, 79th Cong., 2d
Sess., as early as 1946. He stated:
"Examining the conduct of the States we find a series of
provisions in State constitutions and statutes in which several
States,
e.g., Alabama, Florida, Georgia, Mississippi,
Texas, and Louisiana, lay claim to a maritime boundary of 3
leagues, 6 leagues, or more."
Id. at 16.
During the 1953 hearings, Senator Long of Louisiana was
concerned by statements made by Senator Holland of Florida, the
author of the bill, to the effect that only Florida and Texas would
be entitled to three leagues.
"Senator LONG. May I ask the Senator a question concerning my
State? When Louisiana came into the Union, it is my recollection
that the enabling act which was passed by Congress described the
boundaries of Louisiana as including all islands within 3 leagues
of the coast. . . ."
To this Senator Holland replied,
"The Senator from Florida has read and studied to some extent
the question which the Senator from Louisiana has mentioned. The
Senator from Florida thinks that the coast of Louisiana is that rim
of islands, but the court might not so find when it went before the
court."
Hearings before the Senate Interior and Insular Affairs
Committee, 83d Cong., 1st Sess. 48.
[
Footnote 2/22]
By another opinion, handed down this day, we have held that
Florida is entitled to a three-league marginal belt because
Congress in 1868, 15 Stat. 73, expressly approved the Florida
Constitution which precisely defined a three-league seaward
boundary.
United States v. Florida, post, p.
363 U. S. 121.
[
Footnote 2/23]
See text accompanying notes
363 U.S.
1fn2/12|>12 and
363 U.S.
1fn2/15|>15,
supra.
[
Footnote 2/24]
See 363 U.S.
1fn2/22|>note 22,
supra.
[
Footnote 2/25]
"The committee believes that failure to continue existing State
control will result in delaying for an indefinite time the
intensive development now under way on these lands and that any
delay is, in the words of Secretary Forrestal, 'contrary to the
best interest of the United States from the viewpoint of national
security.' . . . Local controls and promptness of action are highly
desirable. The fixed, inflexible rules and the delays and
remoteness which are inseparable from a centralized national
control would, in the committee's judgment, be improvident."
S.Rep.No.133, 83d Cong., 1st Sess. 70, 71, from S.Rep.No.1592,
80th Cong., 2d Sess.
[
Footnote 2/26]
"Therefore, the committee concludes that, in order to avoid
injustices to the sovereign States and their grantees, legislative
equity can best be done by the enactment of S. 1988."
Id. at 68.
And see 363 U.S.
1fn2/8|>notes
363 U.S.
1fn2/8|>8-10,
supra.
[
Footnote 2/27]
See discussion in Hearings before the Senate Interior
and Insular Affairs Committee on S.J.Res. 13, etc., 83d Cong., 1st
Sess. 341, and Joint Hearings before House Committee on Judiciary,
Senate Special Judiciary Subcommittee on H.J.Res. 118, etc., 79th
Cong., 1st Sess. 82.
[
Footnote 2/28]
See 363 U.S.
1fn2/7|>note 7,
supra, for the statement of the
Louisiana Registrar in 1945. She also said:
"For the fiscal year of 1944, my report shows that I have
collected five and a half millions of dollars from this source. In
fact, the most productive area in the entire State is that, in the
maritime belt, or from lands beneath the tidewaters. . . ."
"I would think that you gentlemen will readily understand what
revenues of this size mean to the financial structure of Louisiana.
. . . Terrebonne Parish, which is situated on the coast of
Louisiana, received in 1944 $45,500 from the oil and gas
production. Said funds are expended by the police jury for the
benefit of the parish. It should certainly be obvious what this
loss of revenue would mean to the taxpayers not only of this one
parish but of the entire State."
Joint Hearings before House Committee on Judiciary, Senate
Special Judiciary Subcommittee on H.J.Res. 118, etc., 79th Cong.,
1st Sess. 82.
See 363 U.S.
1fn2/8|>note 8,
supra, for the listing by Congress
of these factors as going to the equity of the States' ownership
(
e.g., "that the bonded indebtedness, school funds, and
tax structures of several States are largely dependent upon State
ownership of these lands. . . ." S.Rep.No.133, 83d Cong., 1st Sess.
67).
[
Footnote 2/29]
See 363 U.S.
1fn2/31|>note 31,
infra.
[
Footnote 2/30]
"In order that there may be no misunderstanding, generally
speaking, what we have in mind is the 3-mile line, except for the
coasts of Texas and the west coast of Florida, where 3 leagues
would generally prevail."
Hearings before the Senate Committee on Interior and Insular
Affairs on S.J.Res. 13, etc., 83d Cong., 1st Sess. 957.
And
see 926, 931-933, 957-958, and Senator Jackson's comments at
279-281.
[
Footnote 2/31]
"The committee deems it imperative that Congress take action at
the earliest possible date to clarify the endless confusion and
multitude of problems resulting from the California decision, and
thereby bring to a speedy termination this whole controversy.
Otherwise inequities, injustices, vexatious and interminable
litigation, and the retardment of the much needed development of
the resources in these lands will inevitably result. . . . We are
certain that, until the Congress enacts a law consonant with what
the States and the Supreme Court believed for more than a century
was the law, confusion and uncertainty will continue to exist,
titles will remain clouded, and years of vexations and complicated
litigation will result."
S.Rep. No. 133, 83d Cong., 1st Sess. 57, 61, from S.Rep. No.
1592, 80th Cong., 2d Sess.
MR. JUSTICE DOUGLAS, dissenting in part.
Texas was admitted to the Union in 1845 (9 Stat. 108) pursuant
to a prior Joint Resolution (5 Stat. 797) which reserved for
adjustment by the United States "all questions of boundary that may
arise with other governments." Texas, as early as 1836, had
claimed, as the opinion of the Court shows, a seaward boundary of
"three leagues from land." Such a claim conflicted with our
national policy in the Gulf, since the United States before then
had, in treaties with Spain (8 Stat. 252) and with Mexico (8 Stat.
372), described the boundaries between the two countries west of
the Mississippi as commencing "on the Gulf of Mexico at the mouth
of the river Sabine, in the sea." Moreover the Convention of 1838
to establish the boundary between the United States and Texas (8
Stat. 511) agreed to the running and marking of
"that portion of the said boundary which extends from
Page 363 U. S. 102
the mouth of the Sabine, where that river enters the Gulph of
Mexico, to the Red river."
Certainly, in that Convention, Texas was not going so far as to
claim, as she had earlier, "three leagues" into the Gulf.
I agree with the Court that there was nothing done at or
subsequent to that time to approve the Texas claim to three leagues
from land unless it be the Treaty of Guadalupe Hidalgo signed on
February 2, 1848, 9 Stat. 922, by the United States and Mexico and
which,
inter alia, fixed the "boundary line between the
two republics" in the Gulf of Mexico "three leagues from land,
opposite the mouth of the Rio Grande." Can we say that the United
States sat at that conference table negotiating for Texas and her
boundary claim? Was the seaward boundary once claimed by Texas now
claimed by the United States in recognition that Texas owned
it?
There is not a word in the history of the negotiations to
indicate that the United States had moral or legal claim to the
three-league belt because of the earlier claim of Texas. There is
no suggestion that the United States claimed derivatively from the
right of Texas, and thus upheld the position of Texas, approving
the claim made by Texas in 1836. There is not a word indicating
that the Treaty of 1848 was, in form or in essence, an undertaking
by Congress to fix the boundaries of Texas under the 1838
convention.
The terms of the 1838 Convention do not support any such
construction, for, as I have said, that Convention fixed the
boundary as extending "from the mouth of the Sabine, where that
river enters the Gulph of Mexico," not "three leagues" seaward of
that point. To conclude, therefore, that the Treaty of Guadalupe
Hidalgo was intended to fix the land and sea boundaries of Texas in
accordance with the Texas Boundary Act of 1836 is to indulge in
mental gymnastics beyond my capacities. The agreement by the United
States to fix the boundaries
Page 363 U. S. 103
of Texas was not contained in the unilateral act of Texas
reflected in her 1836 statute, but by the Convention of 1838, which
required the seaward boundary to extend from "the mouth of the
Sabine, where that river enters the Gulph of Mexico." The
obligation in this Convention thus is at war with any inference
that the seaward boundary was to be "three leagues" from shore.
Cf. United States v. Texas, 162 U. S.
1,
162 U. S. 32.
While the 1838 Convention failed to include any seaward
territory, a Joint Commission appointed to make the survey pursuant
to the 1838 Convention actually marked the boundary between the
United States and the Republic of Texas at the mouth of the Sabine
River -- not three leagues into the Gulf of Mexico. [
Footnote 3/1]
It is true that the Joint Resolution of 1845 (5 Stat. 797)
called for the formation of Texas "subject to the adjustment by
this government of all questions of boundary that may arise with
other governments." But the situation envisaged by that clause soon
changed. The Mexican war broke out in 1846, and the Treaty of
Guadalupe Hidalgo finally brought it to a close. By the time the
treaty negotiations started, the United States was thinking in new
dimensions. The problem was no longer finding and establishing what
the Texas boundaries had been. We then put that question to one
side. The instructions to
Page 363 U. S. 104
our representative, Nicholas P. Trist, which included a project
of the Treaty, read in part,
"The extension of our boundaries over New Mexico and Upper
California, for a sum not exceeding twenty millions of dollars, is
to be considered a
sine qua non of any treaty. You may
modify, change, or omit the other terms of the project if needful,
but not so as to interfere with this ultimatum. [
Footnote 3/2]"
If Lower California was included, Trist was authorized to pay up
to $25,000,000. [
Footnote 3/3]
Trist recorded at his first conference with the Mexican
Commissioners that "our claim for extension of territory" was
placed "on the ground of indemnity for the expenses of the war."
[
Footnote 3/4] The acquisition of
territory from Mexico as indemnity was repeated over and again by
President Polk in his message of December 7, 1847. [
Footnote 3/5] Thus, he said, " . . . if no Mexican
territory was acquired, no indemnity could be obtained." [
Footnote 3/6] Again, "[t]he doctrine of no
territory is the doctrine of no indemnity." [
Footnote 3/7] And what he went on to say should remove
any doubts about the nature of the controversy with Mexico. First,
it will be apparent from what follows that "three leagues" were not
a part of his thinking when it came to the seaward boundary.
Second, it is obvious that
Page 363 U. S. 105
the sole preoccupation was with the acquisition of land from
Mexico. [
Footnote 3/8]
"The commissioner of the United States was authorized to agree
to the establishment of the Rio Grande as the boundary,
from
its entrance into the Gulf to its intersection with the
southern boundary of New Mexico, in north latitude about thirty-two
degrees, and to obtain a cession to the United States of the
provinces of New Mexico and the Californias, and the privilege of
the right of way across the isthmus of Tehuantepec. The boundary of
the Rio Grande, and the cession to the United States of New Mexico
and Upper California, constituted an ultimatum which our
commissioner was, under no circumstances, to yield."
"That it might be manifest not only to Mexico, but to all other
nations, that the United States were not disposed to take advantage
of a feeble power by insisting upon wresting from her all the other
provinces, including many of her principal towns and cities, which
we had conquered and held in our military occupation, but were
willing to conclude a treaty in a spirit of liberality, our
commissioner was authorized to stipulate for the restoration to
Mexico of all our other conquests."
"As the territory to be acquired by the boundary proposed might
be estimated to be of greater value than a fair equivalent for our
just demands, our commissioner was authorized to stipulate for the
payment of such additional pecuniary consideration as was deemed
reasonable."
(Italics added.)
And when the Treaty had been ratified by both countries and
President Polk reported to Congress, he did not speak of settlement
of any boundaries of the former State
Page 363 U. S. 106
of Texas. He stated, "The extensive and valuable territories
ceded by Mexico to the United States constitute indemnity for the
past." [
Footnote 3/9] And he
expounded on the valued additions of New Mexico and Upper
California to our domain. [
Footnote
3/10] There is no mention of any settlement of any claim of
Texas to a seaward boundary "three leagues" off shore. Nor is there
any reference to any boundary settlement based on old Texas claims.
This is not surprising, for the Treaty of Guadalupe Hidalgo was
part of our empire building, not the determination of old
boundaries.
The Treaty of Guadalupe Hidalgo has, until now, never been
considered to have played any part in determining any Texan
boundary question. As stated by the Court in
United States v.
Texas, 162 U. S. 1, the
boundary question was resolved by the Act of September 9, 1850 (9
Stat. 446). After quoting the 1836 Act by which Texas claimed
"three leagues from land" as her seaward border, the Court went on
to say:
"This boundary had not been defined when Texas was admitted, as
a State, into the Union, with the territory 'properly included
within and rightfully belonging to the Republic of Texas.' The
settlement of that question, together with certain claims made by
Texas against the United States, were among the subjects that
engaged the attention of congress during the consideration of the
various measures constituting the compromises of 1850. The result
was the passage of the above act of September 9, 1850, c. 49, the
provisions of which were promptly accepted by the Texas. This
legislation of the two governments constituted a convention or
contract in
Page 363 U. S. 107
respect of all matters embraced by it. The settlement of 1850
fixed the boundary of Texas 'on the north' to commence at the point
at which the 100th meridian intersects the parallel of 36� 30'
north latitude, and from that point the northern line ran due west
to the 103d meridian, thence due south to the 32d degree of north
latitude, thence on that parallel to the Rio Bravo del Norte, and
thence with the channel of that river to the Gulf of Mexico."
162 U.S. at
162 U. S. 39.
Drawing the line "to the Gulf of Mexico" is a far cry from
drawing it to a point "three leagues" from the shore. What we do
today is quite inconsistent with what a unanimous Court in
United States v. Texas, supra, decided in 1896. What the
Court said was not decided until 1850 we now say was decided
earlier.
Though the United States and Mexico, by the Treaty of Guadalupe
Hidalgo, established land boundaries between the two countries,
Congress never recognized that the Treaty established any
boundaries of Texas. In her 1836 statute, Texas not only claimed
the three-league belt in the Gulf of Mexico, but also much of the
territory lying west and north of her present boundaries, including
eastern New Mexico, which, like the three-league belt, was acquired
under the Treaty by the United States. Congress, in the 1850
compromise, paid Texas $10,000,000 to relinquish its claim to this
territory. Yet this payment was regarded by Congress not as
purchase price, but as settlement of a disputed claim. [
Footnote 3/11] Accordingly, it was early
held that eastern New Mexico, though claimed by Texas, was not
brought into the Union by the Joint
Page 363 U. S. 108
Resolution of 1845, and that the Treaty of Guadalupe Hidalgo did
not establish what the Texas boundaries had been at the time of its
annexation.
De Baca v. United States, 36 Ct.Cl. 407 (
1901). I cannot understand how the Treaty can be said to have
established a seaward boundary when it did not fix the inland
boundaries of Texas. The Court does not suggest that all the land
claimed by Texas in her 1836 statute and subsequently ceded to the
United States in the Treaty of Guadalupe Hidalgo was "territory
properly included within, and rightfully belonging to the Republic
of Texas" within the meaning of the Joint Resolution of 1845. Yet I
can see no basis for deciding that the Treaty, though not
recognizing the validity of the western boundary claims of Texas,
did establish and fix other Texas boundaries. [
Footnote 3/12] If
Page 363 U. S. 109
the Government was not negotiating on behalf of Texas in
acquiring the eastern New Mexico territory, how can it be said to
have done so with respect to the seaward boundary claim?
The southwestern boundary of Texas was confirmed in the 1850
Compromise to lie along the Rio Grande "to the Gulf of Mexico." The
1838 Convention had fixed the eastern boundary at "the mouth of the
Sabine." Thus, on the two occasions when the United States and
Texas negotiated and agreed upon boundaries, and when they would
have been most likely to have settled the question, no extension of
the Texas territory into the Gulf was recognized. The conclusion
for me is irresistible that the seaward boundary, so far as Texas
was concerned, was so inconsequential as to require or receive no
settlement. I conclude that, in terms of § 4 of the 1953 Act, the
boundary of Texas, reserved for later adjudication when Texas was
admitted to the Union, was, on its seaward side, never approved by
Congress to be three leagues from shore.
Why, then, the reference in the Treaty to the "Boundary line"
between the United States and Mexico as "three leagues" from land
in the Gulf of Mexico?
The Court says that the United States, in negotiating the
Treaty, attempted to follow the 1836 Texas Act. The project of the
Treaty given to Trist did provide for a boundary line commencing
"three leagues from the land opposite the mouth of the Rio Grande."
[
Footnote 3/13] But neither it
nor the accompanying instructions made any reference to the 1836
Act of Texas. Trist was not told to take the 1836 Act as his guide
when it came to seaward boundaries. I can find nothing in the
instructions to Trist which relates his duties in negotiating the
Treaty to what Texas had claimed in 1836, nor does the Court refer
us to
Page 363 U. S. 110
any such instruction. To be sure, Trist's predecessor, John
Slidell, had been advised by the Secretary of State, Mr. Buchanan,
in a letter dated November 10, 1845, that
"The Congress of Texas, by the act of December 19, 1836, have
declared the Rio del Norte [Rio Grande], from its mouth to its
source, to be a boundary of that republic. [
Footnote 3/14]"
Trist knew of these earlier instructions. [
Footnote 3/15] Yet, if he followed them literally,
he would have negotiated a boundary beginning "at the mouth" of the
Rio Grande, not "three leagues from land opposite the mouth."
[
Footnote 3/16] And, as I have
pointed out, the purpose of Trist's mission was much different from
that of Slidell's. Slidell was sent to Mexico before the war to
settle a boundary dispute. Trist went to obtain the fruits of our
conquest of Mexico. The Court concedes that Slidell's instructions
demonstrate "total insensitivity to any problem of a seaward
boundary." I agree. But I cannot take the additional step that,
although our State Department was wholly insensitive to the problem
of a seaward boundary, it was nonetheless trying to stand in the
shoes of Texas and get Mexico to validate the old boundary claims
of Texas. So far as I can deduce, this is sheer speculation.
Much less speculative is the reason advanced in 1875 by Hamilton
Fish, Secretary of State.
In 1874, Lord Derby had raised for Great Britain a question with
regard to Spain's claim of jurisdiction of
Page 363 U. S. 111
two leagues from the Spanish coast. [
Footnote 3/17] Hamilton Fish replied on January 22,
1875, as follows: [
Footnote
3/18]
". . . I have the honor to inform you that this Government has
uniformly, under every administration which has had occasion to
consider the subject, objected to the pretension of Spain adverted
to, upon the same ground and in similar terms to those contained in
the instruction of the Earl of Derby."
"We have always understood and asserted that, pursuant to public
law, no nation can rightfully claim jurisdiction at sea beyond a
marine league from its coast."
"This opinion on our part has sometimes been said to be
inconsistent with the facts that, by the laws of the United States,
revenue cutters are authorized to board vessels anywhere within
four leagues of their coasts, and that, by the treaty of Guadalupe
Hidalgo, so-called, between the United States and Mexico, of the
second of February, 1848, the boundary line between the dominions
of the parties begins in the Gulf of Mexico, three leagues from
land."
"It is believed, however, that, in carrying into effect the
authority conferred by the act of Congress referred to, no vessel
is boarded, if boarded at all, except such a one as, upon being
hailed, may have answered that she was bound to a port of the
United States. At all events, although the act of Congress was
passed in the infancy of this Government, there is no known
instance of any complaint on the part of a foreign government of
the trespass by a commander of a revenue cutter upon the rights of
its flag under the law of nations. "
Page 363 U. S. 112
"In respect to the provision in the treaty with Mexico, it may
be remarked that it was probably suggested by the passage in the
act of Congress referred to, and designed for the same purpose,
that of preventing smuggling. By turning to the files of your
legation, you will find that Mr. Bankhead, in a note to Mr.
Buchanan of the 30th of April, 1848, objected on behalf of Her
Majesty's government to the provision in question. Mr. Buchanan,
however, replied in a note of the 19th of August in that year that
the stipulation could only affect the rights of Mexico and the
United States, and was never intended to trench upon the rights of
Great Britain, or of any other power under the law of nations."
The Act referred to was that of March 2, 1799 (1 Stat. 627),
which provided in § 54 that it shall be lawful for our collectors,
naval officers, inspectors, and officers of revenue cutters to
board ships bound to the United States "within four leagues of the
coast" for the purpose of controlling or preventing smuggling.
[
Footnote 3/19]
That this was the purpose gains collateral support from a series
of treaties concluded by Mexico in the latter half
Page 363 U. S. 113
of the nineteenth century with China, [
Footnote 3/20] the Dominican Republic, [
Footnote 3/21] El Salvador, [
Footnote 3/22] France, [
Footnote 3/23] Germany, [
Footnote 3/24] the Netherlands, [
Footnote 3/25] Norway and Sweden, [
Footnote 3/26] and the United Kingdom, [
Footnote 3/27] which state that the
"three league" belt (or at
Page 363 U. S. 114
times a broader one) was being used for certain limited reasons
of law enforcement.
These treaties reflect what Hamilton Fish, as Secretary of
State, said about the Treaty of Guadalupe Hidalgo and
Page 363 U. S. 115
its "three league" provision. They show a practice of exercising
extraterritorial regulation beyond the usual three-mile limit with
respect to customs and smuggling. It is true that the Treaty of
Guadalupe Hidalgo speaks in terms of "boundary." But, if it meant
"boundary" in the technical property sense, it would mark a line
that separated the territory of the United States and Mexico and
established a territorial claim good against all comers. Our State
Department, from the beginning, insisted that was not intended.
When Great Britain protested in 1848 that the Treaty of Guadalupe
Hidalgo did not respect the three-mile limit which
"is acknowledged by international law and practice as the extent
of territorial jurisdiction over the sea that washes the coasts of
states,"
Secretary of State Buchanan's answer (which, as we have noted,
Hamilton Fish referred to in his communication of January 22, 1875)
was as follows: [
Footnote
3/28]
"In answer, I have to state that the stipulation in the treaty
can only affect the rights of Mexico and the United States. If, for
their mutual convenience, it has been deemed proper to enter into
such an arrangement, third parties can have no just cause of
Page 363 U. S. 116
complaint. The Government of the United States never intended by
this stipulation to question the rights which Great Britain or any
other power may possess under the law of nations."
That has consistently been our construction. I have already
referred to what Secretary Fish said in 1875. When Mexico, in 1935,
undertook to extend the breadth of Mexican territorial waters from
three to nine miles, [
Footnote
3/29] our Ambassador, Josephus Daniels, on instructions from
the State Department, protested, reserving "all rights of whatever
nature so far as concerns any effects upon American commerce from
enforcement of this legislation." [
Footnote 3/30] And when Mexico, in reply, [
Footnote 3/31] referred to the Treaty of
Guadalupe Hidalgo as justifying her claim to nine miles, the State
Department reiterated, among other things, our consistent position
that the treaty provision extending the "boundary" into the Gulf
for three leagues was included to give the two nations jurisdiction
to that distance at that particular point "to prevent smuggling."
[
Footnote 3/32]
It seems apparent from this history that the United States, in
negotiating the Treaty of Guadalupe Hidalgo, was far from
determining that the metes and bounds of our property on the
seaward side of the Gulf ran to three leagues. The three-league
provision, in purpose and presumed effect, had quite a different
aim. It had no aim to assert derivatively a title that Texas had
claimed. Its aim was merely to mark a zone where, so far as the two
contracting parties were concerned, our law enforcement agencies
could maintain effective patrols. If this history shows nothing
else, it shows that the United States had a national interest in
having the three-league belt recognized
Page 363 U. S. 117
for its own purposes, whereas Texas, up to the time oil was
discovered offshore, placed no value whatsoever on a seaward
boundary. For me, the argument becomes too thin to say that the
United States, though nominally negotiating on her own behalf, was
claiming the three-league maritime belt on behalf of Texas.
If we acted today with the precision and meticulous care which
is demanded in title disputes, we could not, I think, say that the
United States, in the Treaty of Guadalupe Hidalgo, recognized or
approved the Texas claim that the territory of Texas extended three
leagues from shore.
Yet, if we are to decide these cases by substandards (lessening
the requirements of proof as we should do if Congress intended to
grant whatever the parties fairly claimed), then I agree with MR.
JUSTICE BLACK that the discrimination in favor of Texas and against
Louisiana, Alabama, and Mississippi is quite unjustified.
If the southeast corner of Texas was three leagues offshore, it
is difficult for me to see how the southwest corner of Louisiana
was not at the same point. From the beginning, the United States
and Spain fixed their corner west of the Mississippi "on the Gulph
of Mexico at the mouth of the river Sabine, in the sea." 8 Stat.
254. If we move the Texas boundary out three leagues, it is hard to
see why Louisiana's does not accompany it. It has long been
recognized that a part of Louisiana's border is "a water boundary"
that extends "to the open sea or Gulf of Mexico,"
Louisiana v.
Mississippi, 202 U. S. 1,
202 U. S. 43, and
includes "the deep-water sailing channel line as a boundary."
Id. at
202 U. S. 44.
The enabling Act authorizing the people of the Territory of
Orleans to form Louisiana described the territory as running "to
the gulf of Mexico; thence bounded by the said gulf . . . including
all islands within three leagues of the coast." 2 Stat. 641. The
boundaries described
Page 363 U. S. 118
in the Act admitting Louisiana to the Union are similarly
described as "to the gulf of Mexico; thence, bounded by the said
gulf . . . including all islands within three leagues of the
coast." 2 Stat. 701, 702.
As respects Mississippi, Congress, in the Enabling Act (3 Stat.
348), provided that the territory included in the new State would
run from a specified point on the Gulf of Mexico "westwardly,
including all the islands within six leagues of the shore." This
was the boundary description used since George III of Great Britain
described West Florida as "bounded to the southward by the Gulf of
Mexico, including all islands within six leagues of the coast."
[
Footnote 3/33]
Alabama, when a territory, had two of its boundaries described
as "thence due south to the Gulf of Mexico, thence eastwardly,
including all the islands within six leagues of the shore, to the
Perdido river." 3 Stat. 371. This language was repeated in the
Enabling Act. 3 Stat. 489.
The United States concedes that, so far as Louisiana,
Mississippi, and Alabama are concerned, all the submerged lands
between the mainland and the islands are sufficiently enclosed to
constitute inland waters that passed to the State on its entry into
the Union.
Pollard v.
Hagan, 3 How. 212. It further concedes that these
States have rights to the submerged lands within three miles of the
islands under the ordinary three-mile rule.
If we were to require the degree of proof of ownership which is
ordinarily required in title disputes, I would agree that neither
Louisiana, Alabama, nor Mississippi has met the burden of proof.
But if standards and requirements
Page 363 U. S. 119
as lax as those used to grant Texas three leagues from shore are
sufficient for her, they should be sufficient for these other three
States.
The heart of the Texan claim is that the United States and
Mexico recognized that there was a three-league maritime belt which
each would respect, and that this was done in recognition of the
validity of the claims contained in the 1836 statute of Texas. This
belt was called a "boundary," but, as I have tried to demonstrate,
it was not a territorial claim, but only a demarcation of zones
where the parties' respective law enforcement activities would be
recognized and approved. The Gulf presents peculiar problems due to
its shallow coast. The shallowness of its waters is well
documented, and our Government was well aware of this condition in
1848. [
Footnote 3/34] These are
the persuasive facts behind the creation of the three-league belt
by the Treaty of Guadalupe Hidalgo and by Mexico in the other
treaties concerning the Gulf which she negotiated with other
nations.
If the policy of measuring the zone of the United States as
"three leagues" into the Gulf off the shore of Texas is to give
Texas property rights to the submerged lands in that zone, the
beneficiaries of that concern should be all our Gulf States. At
best, the language used to describe the seaward territories of
Louisiana, Alabama, and Mississippi is ambiguous. The words "to the
Gulf of Mexico . . . including all of the islands" within certain
designated leagues of the shore can reasonably mean that the
"boundary line" is marked by the islands. There is difficulty in
that construction. Yet it is, for me, no more difficult than the
method we use to give Texas a territorial claim in the same belt.
All the States on the Gulf
Page 363 U. S. 120
should be given the same benefit of the doubts that have been
resolved in favor of Texas. The claim of Florida, as shown in
United States v. Florida, 363 U.
S. 121, is fully established by the standard I would ask
Texas to meet. If we are to relax the standard of proof for the
benefit of Texas, we should do so for all these claimants. In that
posture, the claims of each of the other Gulf States which have
gone "long unchallenged," as shown by MR. JUSTICE BLACK, are as
clear as those of Texas.
[
Footnote 3/1]
The Journal of the Joint Commission under date of May 21, 1840,
states:
". . . we proceeded to the entrance of the Sabine river into the
Gulf of Mexico, and then, in virtue of our respective powers, and
in conformity to the provisions of the convention between the two
countries concluded at Washington the 25th day of April, 1838, we
established the point of beginning of the boundary between the
United States and the republic of Texas at a mound on the western
bank of the junction of the river Sabine with the sea. . . . The
mound was made by throwing up earth in a circular form of fifty
feet in diameter, and about seven feet high at its centre. . .
."
S.Doc.No.199, 27th Cong., 2d Sess. 59.
[
Footnote 3/2]
S.Exec.Doc.No.52, 30th Cong., 1st Sess. 83.
[
Footnote 3/3]
Id. at 82.
[
Footnote 3/4]
His first conference on January 2, 1848, was described in his
own words as follows:
"President's message referred to by the Mexican Commissioners as
founding our claim for extension of territory on the ground of
indemnity for the expenses of the war. The causes of the war, &
the question of justice in respect thereto, viewed by Mexico in a
totally different light from that in which they are presented in
the message. They propose arbitration as the first mode of settling
this question and of determining the measure of indemnity justly
due to the U. States. . . ."
Papers of Nicholas P. Trist (Library Cong.1917), Vol. 27, fol.
61009.
[
Footnote 3/5]
H.R.Exec.Doc.No.8, 30th Cong., 1st Sess. 3.
[
Footnote 3/6]
Id. at 8.
[
Footnote 3/7]
Ibid.
[
Footnote 3/8]
Id. at 8-9.
[
Footnote 3/9]
President's Message to Congress, July 6, 1848, S.Exec.Doc.No.60,
30th Cong., 1st Sess. 1.
[
Footnote 3/10]
Id. at 2.
[
Footnote 3/11]
See Message of President Fillmore to Congress, Aug. 6,
1850, Cong.Globe, 31st Cong., 1st Sess. 1525-1526; letter from
Daniel Webster, Secretary of State, to P. H. Bell, Governor of
Texas, Aug. 5, 1850,
id. at 1526-1527; remarks of Senator
Pearce, sponsor of the bill,
id. at 1540-1542.
[
Footnote 3/12]
The Court suggests,
ante, note 100 that, while the United States pressed Texas'
claim to the three-league belt, Texas' claim to eastern New Mexico
"obviously was not pressed against Mexico on Texas' behalf." Yet
the evidence relied upon by the Court in finding that the United
States pressed the Texas claim to a three-league belt supports no
such distinction. The statement of President Polk to Congress
(H.R.Exec.Doc.No.60, 30th Cong., 1st Sess. 4, 7) said, "The
Congress of Texas, by its act of December 19, 1836, had declared
the Rio del Norte to be the boundary of that republic." The
instructions to John Slidell (S.Exec.Doc.No.52, 30th Cong., 1st
Sess. 75) read,
"The Congress of Texas, by the act of December 19, 1836, have
declared the Rio del Norte, from its mouth to its source, to be a
boundary of that republic."
The Court relies on this evidence in finding that the United
States was confirming the claims in the Texas act of 1836 insofar
as it related to a seaward boundary, but not insofar as the act
claimed ownership of all land lying east of the Rio Grande. Since
these communications expressly referred to the Texas claim to the
territory east of the Rio Grande, from its mouth to its source,
which included eastern New Mexico, whereas they were wholly silent
on any claim to a seaward territory, the Court's conclusion that
the seaward claim was pressed and approved, while some territorial
claims were not, seems fanciful to me.
[
Footnote 3/13]
S.Exec.Doc.No.52, 30th Cong., 1st Sess. 86.
[
Footnote 3/14]
Id. at 75.
[
Footnote 3/15]
Papers of Nicholas P. Trist (Library of Congress 1917), Vol. 33,
fol. 62071.
[
Footnote 3/16]
These instructions authorized Slidell
"to pay five millions of dollars in case the Mexican government
shall agree to establish the boundary between the two countries
from the mouth of the Rio Grande, up the principal stream to the
point where it touches the line of New Mexico; thence west of the
river along the exterior line of that province, and so as to
include the whole within the United States. . . ."
S.Exec.Doc.No.52, 30th Cong., 1st Sess. 78.
[
Footnote 3/17]
H.R.Exec.Doc.No.1, Pt. 1, 44th Cong., 1st Sess. 641.
[
Footnote 3/18]
Id. at 649-650.
[
Footnote 3/19]
Chief Justice Marshall, writing for the Court in
Church v.
Hubbart, 2 Cranch 187,
6 U. S. 235,
said:
"In different seas and on different coasts, a wider or more
contracted range in which to exercise the vigilance of the
government will be assented to. Thus, in the channel, where a very
great part of the commerce to and from all the north of Europe
passes through a very narrow sea, the seizure of vessels on
suspicion of attempting an illicit trade must necessarily be
restricted to very narrow limits, but, on the coast of South
America, seldom frequented by vessels but for the purpose of
illicit trade, the vigilance of the government may be extended
somewhat further; and foreign nations submit to such regulations as
are reasonable in themselves, and are really necessary to secure
that monopoly of colonial commerce which is claimed by all nations
holding distant possessions."
[
Footnote 3/20]
"
Article XI. . . . The two contracting parties agree
upon considering a distance of three marine leagues, measured from
the line of low tide, as the limit of their territorial waters for
everything relating to the vigilance and enforcement of the customs
house regulations and the necessary measures for the prevention of
smuggling."
1 Laws and Regulations on the Regime of the High Seas (United
Nations Legislative Series) 147.
[
Footnote 3/21]
"
Article 15. In all that concerns the police
regulations of the ports, the loading and discharging of ships, and
the custody of the merchandise and effects, the subjects of the two
Powers shall be subject to the local laws and ordinances."
"With respect to Mexican ports, under this title are
comprehended the laws and ordinances promulgated, or that may be
promulgated in the future, by the federal Government, as also the
dispositions of the local authorities within the limits of the
sanitary police."
"The contracting parties agree to consider as the limit of the
territorial jurisdiction on their respective coasts the distance of
twenty kilometres, counted from the line of lowest tide.
Nevertheless, this rule shall only be applied for the carrying out
of the custom house inspection, the observance of the custom house
regulations, and the prevention of smuggling, but on no account
shall it apply to the other questions of international maritime
law."
"It is equally understood that each one of the contracting
parties shall not apply the said extension of the limit of
jurisdiction to the ships of the other contracting party except
when this contracting Power proceeds in the same manner with the
ships of the other nations with which it has treaties of commerce
and navigation."
Id. at 153, 154.
[
Footnote 3/22]
"
Article XXI. It is agreed between the High contracting
parties that the limit of sovereignty in the territorial waters
adjacent to their respective coasts comprises a distance of twenty
kilometres, counted from the line of lowest tide, but this rule
shall apply only as regards the exercise of the right of police for
the execution of customs ordinances and the prevention of
smuggling, and in respect of matters concerning the security of the
country. In no case shall such limit be applicable to other
questions of international maritime law."
Id. at 156.
[
Footnote 3/23]
Article 15. The contracting parties agree to consider as the
limit of territorial sovereignty on their respective coasts a
distance of twenty kilometres from the line of lowest tide.
"At all times this rule shall be applicable only for exercising
customs control, for executing customs ordinances, and for the
regulations against contraband, and shall never be applied, on the
other hand, in all other questions of international maritime law.
It is likewise understood that each of the contracting parties will
apply said extent of the limit of sovereignty to the vessels of the
other contracting party only provided that said contracting party
acts likewise toward vessels of other nations with which it has
made treaties of commerce and navigation." Id. at 169, 170.
[
Footnote 3/24]
"
Article VIII. . . . The two contracting parties agree
to consider as the limit of maritime jurisdiction on their coasts
the distance of three sea leagues, reckoned from low-water mark.
Nevertheless, this stipulation shall not have effect except as
regards the coast guard and custom house service and the measures
for preventing contraband trade. As regards all other questions of
international law, it shall have no application. It is, however, to
be understood that the aforesaid extension of maritime jurisdiction
shall not be made applicable by one of the contracting parties as
against the vessels of the other unless that party shall treat in
the same manner the vessels of all other nations with which it may
have treaties of commerce and navigation."
Id. at 170.
[
Footnote 3/25]
"
Article 6. The high contracting parties agree to
consider as a limit of their territorial waters on their respective
coasts the distance of twenty kilometres reckoned from the line of
low-water mark. Nevertheless this stipulation shall have no effect
except in what may relate to the observance and application of the
custom house regulations and the measures for preventing smuggling,
and can in no way be extended to other questions of international
maritime law."
Id. at 171.
[
Footnote 3/26]
"
Article VII. . . . The two contracting parties agree
to consider as the limit of territorial seas on their respective
coasts for the purpose of applying customs regulations and measures
necessary for the prevention of smuggling the distance of three
marine leagues reckoned from low-water mark. It is understood,
however, that, with respect to other questions of international
maritime law, this extension of territorial seas shall not be
applied by one of the contracting parties to the vessels of the
other, unless that party shall apply it equally to vessels of other
nations with which she has concluded treaties of commerce and
navigation."
Id. at 171-172.
[
Footnote 3/27]
"
Article IV. . . . The two Contracting Parties agree to
consider as a limit of their territorial waters on their respective
coasts the distance of three marine leagues, reckoned from the line
of low-water mark. Nevertheless, this stipulation shall have no
effect, excepting in what may relate to the observance and
application of the custom house regulations and the measures for
preventing smuggling, and cannot be extended to other questions of
civil or criminal jurisdiction, or of international maritime
law."
Id. at 172.
[
Footnote 3/28]
1 Moore, Digest of International Law (1906) 730.
[
Footnote 3/29]
1 Hackworth, Digest of International Law (1940), 639.
[
Footnote 3/30]
99 Cong.Rec. 3623.
[
Footnote 3/31]
Ibid.
[
Footnote 3/32]
Id. at 3624.
[
Footnote 3/33]
American State Papers, 5 Public Lands 756. Both East and West
Florida were ceded to the United States by Spain in 1819. 8 Stat.
252, 254.
[
Footnote 3/34]
See 7 British and Foreign State Papers 984; 9 British
and Foreign State Papers 828-829; 18 British and Foreign State
Papers 1403.