Seaweed and Spoils: The Global Battle to Become ‘Admiral of the Ocean Sea’
At the time of Christopher Columbus (1451-1506), Spain called the Atlantic Ocean the “Ocean
Sea.” One of several honors that the Spanish monarchy promised Columbus was the title:
“Admiral of the Ocean Sea.” This article will review several aspects of the historic struggle for
dominion over the oceans, as well as the need to balance environmentalism, “Seaweed,” and
“spoils,” the economic benefits of this final frontier.
In 1823, the U.S. Supreme Court, in an opinion authored by Chief Justice Marshall, stated that
the “Doctrine of Discovery” was law in the United States.1 The concept of discovery essentially
holds that exclusive land ownership, against both the American Indians and other European
powers, was acquired by the possession of North American lands by U.S. citizens. Such a rule
may well be asserted in future international conflicts over ocean sovereignty. Spain, France, and
Portugal historically engaged in symbolic acts of possession by planting a flag and reciting an
ownership claim. In August 2007, Russia undertook the same action while planting a flag in the
seabed near the North Pole.2 Further complicating this potential clash is the fact that the United
States is not a party to the United Nations Convention on the Law of the Sea, the most ambitious
international attempt to regulate ocean economic development.3
Contemporary United States federal-state relations regarding the ocean are best illuminated by
the “Seaweed Rebellion,” a modern conflict concerning offshore drilling that dates to the
“Tidelands Controversy.” In significant litigation, a controversial decision asserted that Texas
lost any special offshore jurisdiction when it was admitted to the U.S. on an “equal footing” with
the other states.4 While overturned by the Submerged Lands Act of 1953, legislation upheld by
the U.S. Supreme Court,5 the inherent sovereignty issues argued in 1949 are particularly relevant
today under both U.S. domestic law as well as international law. The “Seaweed Rebellion”
debates both environmental and economic development concerned within the context of federal-
Both the North Pole and Antarctica likely contain substantial petroleum reserves, assuming that
the developing underwater and deep drilling technologies make drilling economically feasible.
Professor, Abilene Christian University
Johnson v. Mintosh, 21, U.S. 543 (1823).
“Russia Plants Underwater Flag at North Pole,” New York Times, August 2, 2007.
See, United Nations Convention of the Law of the Sea (1982) available at
http://www.un.org/depts/los/convention_agreements/text/unclos/closbmr.htm. (last visited Nov. 15, 2008).
United States v. Texas, 339 U.S. 707 (1950).
United States v. Louisiana, 364 U.S. 502 (1960).
The original Antarctic Treaty of 1959 does not address mineral development.6 Ultimately
territorial clashes in Antarctica and at the North Pole will occur. Lofty language in the Preamble
of the United Nations Convention of the Law of the Sea states that the oceans are “the common
heritage of mankind.” Will this aspiration be attainable or will there be imperial wars of conquest
based upon nations symbolically seeking the title “Admiral of the Ocean Sea”?
Johnson v. M’Intosh
Justice Marshal wrote that in the relations between the discoverer and the natives “the rights of
the original inhabitants were, in no instance entirely disregarded; but were necessarily to a
considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a
legal as well as a just claim to retain possession of it, and to use it according to their own
discretion. Their rights to complete sovereignty, as independent nations, were necessarily
diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased,
was denied by the original fundamental principle. That discovery gave exclusive title to those
who made it.”7 Furthermore, stated Justice Marshall, “the history of America, from its discovery
to the present day, proves, we think, the universal recognition of these principles.”8
Marshall briefly reviewed Spanish, French, English, and Dutch history and concluded that “not
one of the powers of Europe gave its full assent to this principle more unequivocally than
England.”9 This leads Marshall to the questions. “Have the American states rejected or adopted
this principle?”10 The treaty ending the American Revolution transferred all English rights to the
land to the states.
“The title by conquest is acquired and maintained by force. The conqueror prescribes its limits.
Humanity, however acting on public opinion, has established, as a general rule, that the
conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is
compatible with the objects of the conquest. Most usually, they are incorporated with the
victorious nation, and become subjects or citizens of the government with which they are
connected. The new and old members of the society mingle with each other, the distinction
between them is gradually lost, and they make one people. Where this incorporation is policy it
requires, that the rights of the conquered to property should remain unimpaired; that the new
subjects should be governed as equitably as the old, and that confidence in their security should
See, the Antarctic Treaty (1959), available at http://www.nsf.gov/od/opp/antarct/anttrty.usp (last visited Nov.
21 U.S. 543 at 574.
Id. at 576
Id. at 584
gradually banish the painful sense of being separated from their ancient connection, and united
by force to strangers.”11
“…the tribes of Indians inhabiting this country were fierce savages, whose occupation was war,
and whose subsistence was drawn chiefly from the forest. To leave them in possession of their
country was to leave the country a wilderness; to govern them as a distinct people was
impossible, because they were as brave and as high spirited as they were fierce, and were ready
to repel by arms every attempt on their independence.”12
“What was the inevitable consequence of this state of things? The Europeans were under
necessity of either abandoning the country and relinquishing their pompous claims to it, or of
enforcing these claims by the sword, and by the adoption of principles adapted to the condition
of a people with whom it was impossible to mix, and who could not be governed as a distinct
society, or of remaining in their neighborhood, and exposing themselves and their families to the
perpetual hazard of being massacred.”13
“The law which regulates, and ought to regulate in general, the relations between the conqueror
and conquered, was incapable of application to a people under such circumstances. The resort to
some new and different rule, better adapted to the actual state of things, was unavoidable. Every
rule which can be suggested will be found to be attended with great difficulty.
However extravagant the presentation of converting the discovery of an inhabited country into
conquest may appear; if the principle has been asserted in the first instances, and afterwards
sustained; if a country has been acquired and held under it; if the property of the great mass of
the community originates in it, it becomes the law of the land, and cannot be questioned. So, too,
with respect to the concomitant principle, that the Indian inhabitants are to be considered merely
as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be
deemed incapable of transferring the absolute title to others. However this restriction may be
opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that
system under which the country has been settled, and be adapted to the actual condition of the
two people it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts
“This opinion conforms precisely to the principle which has been supported to be recognized by
all European governments, from the first settlement of America. The absolute ultimate title has
been considered as acquired by discovery, subject only to the Indian title of occupancy, which
title the discoverers possessed the exclusive right of acquiring. Such a right is not more
Id. at 589
Id. at 590
Id. at 590
Id. at 591-592
incompatible with a seisin in fee, than a lease for years, and might as effectually bar an
“If an individual might extinguish the Indian title for his own benefit, or, in other words, might
purchase it, still he could acquire only that title. Admitting their power to change their laws or
usages, so far as to allow an individual to separate a portion of their lands from the common
stock and hold it in severalty, still it is a part of their territory, and is held under them, by a title
dependent on their laws. The grant derives its efficacy from their will; and, if they choose to
resume it, and make a different disposition of the land, the Courts of the United States cannot
interpose for the protection of the title. The person who purchases lands from the Indians, within
their territory, incorporates himself with them, so far as respects the property purchases; holds
their title under their protection, and subject to their laws. If they annul the grant, we know of no
tribunal which can revise and set aside the proceeding.”16
“It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by
a number of individuals, who acknowledge no connection with, and have no allegiance to, any
government whatsoever, the country becomes the property of the discoverers, so far as they can
use it. They acquire a title in common. The title of the whole land is in the whole society. It is to
be divided and parceled out according to the will of the society, expressed by the whole body, or
by that organ which is authorized by the whole to express it.”
“If the discovery be made, and possession of the country be taken, under the authority of an
existing government, which is acknowledged by the emigrants, it is supposed to be equally well
settled, that the discovery is made for the whole nation, that the country becomes a part of the
nations, and that the vacant soil is to be disposed of by that organ of the government which has
the constitutional power to dispose of the national domains, by that organ in which all vacant
territory is vested by law.”
“According to the theory of the British constitution, all vacant lands are vested in the crown, as
representing the nation; and the exclusive power to grant them is admitted to reside in the crown,
as a branch of the royal prerogative. It has already been shown, that this principle was as fully
recognized in America as in the island of Great Britain.”17
“It has never been contended that the Indian title amounted to nothing. Their right of possession
has never been questioned. The claim of government extends to the complete ultimate title,
charged with this right of possession, and to the exclusive power of acquiring that right….The
very grant of a charter is an assertion of the title of the crown and its words convey the same
Id. at 592
Id. at 592-593
Id. at 595
idea. The country granted, is said to be “our island called Rhode-Island;” and the charter contains
an actual grant of the soil, as well as of the powers of government.”18
“This charter, and this letter, certainly sanction a previous unauthorized purchase from Indians,
under the circumstances attending that particular purchase, but are far from supporting the
general proposition that a title acquired from the Indians would be valid against a title acquired
from the crown or without the confirmation of the crown.”
“The acts of the several colonial assemblies, prohibiting purchases from the Indians, have also
been relied on as proving, that, independent of such prohibitions, Indian deeds would be valid.
But we think this fact, at most, equivocal. While the existence of such purchases would justify
their prohibition, even by the colonies which considered Indian deeds as previously invalid, the
fact that such acts have been generally passed, is strong evidence of the general opinion, that
such purchases are opposed by the soundest principles of wisdom and national policy.”19
This significant U.S. Supreme Court decision involved a claim to land purchased from the
Piankeshaw Indians as opposed by a claim to the same land from a grant by the United States.
The Court upheld the U.S. land grant. Of special significance for this article is the announced
Doctrine of Discovery. The doctrine prevented conflicts between imperial European powers and,
at an even more fundamental level, reflects a progressive view of history in which European
civilization is perceived as superior to that of hunter-gatherer societies. The Doctrine of
Discovery is a rationalization of the European conquest of the Americas, according to the
commentary of numerous scholars.20 The decision has a special significance in summing-up past
history as well as being a model for future economic exploration of the final frontiers of ocean
and poles on earth. Past history begins with the concepts of a “just war” and the crusades by
An early English judicial exposition of these ideas was the 1608 decision in Calvin’s case.21 A
citizen of Scotland petitioned the English court to obtain possession of his land that had been
taken by an English citizen. The court reasoned that while Christian aliens could access the
English courts, infidels were enemies of Christians and could not. Regarding infidel lands, the
court wrote that after conquest “ipso facto the laws of the infidel are abrogated, for that they
bee…against Christianity…the law of God and of nature.”22 The Christian monarch acquired
title to infidel lands upon conquest. This combined with discovery in the ultimate U.S. judicial
Id. at 603
Id. at 604.
See, e.g., Eric Kades, The Dark Side of Efficiency: Johnson v. M’Intosh and the Expropriation of American Indian
Lands, 148 Univ. of Penn. Law Review 1065 (2000).
77 Eng. Rep. 377 (1608).
Id. at 398.
At the same time it was believed that the U.S. represented a new order and a break from
European intrigue. Alexander Hamilton wrote: “Unhappily Europe, by her arms and by her
negotiations, by force and by fraud, has in different degrees extended her dominion
over…Africa, Asia, and America….The superiority she has long maintained has tempted her to
plume herself as the mistress of the world, and to consider the rest of mankind as created for her
benefit. Men admired as profound philosophers have in direct terms attributed to her inhabitants
a physical superiority and have gravely asserted that all animals, and with them the human
species, degenerate in America that even dogs cease to bark after having breathed awhile in our
atmosphere. Facts have too long supported these arrogant pretensions of the European. It belongs
to us to vindicate the honor of the human race, and to teach that assuming brother moderation.”23
Johnson v. M’Intosh is a statement of the “on the ground” reality that the United States is the
successor to the European powers in dealings with native peoples. At a deeper and perhaps more
cynical level, the case demonstrates that law can become a tool of empirical power and that there
are multiple rationalizations that may be used to justify imperial power. The U.S. Constitution in
Article I, Section 8, Clause 8 states that Congress has authority “to regulate Commerce with
foreign Nations and among the several States, and with the Indian Tribes.” This provision tacitly
recognizes the preexisting Doctrine of Discovery.
Worchester v. Georgia
Worchester v. Georgia,24 another opinion by Justice Marshall, reviewed under federalism a
Georgia statute prohibiting non-Indians from living on Indian lands unless they had a license.
Seven missionaries in violation were sentenced to four years in prison. The Supreme Court set
aside the state law. While no strictly a Doctrine of Discovery case, the opinion has some
Justice Marshall wrote: “The extra-territorial power of every legislature being limited in its
action, to its own citizens or subjects, the very passage of this act is an assertion of jurisdiction
over the Cherokee nations, and of the rights and powers consequent on jurisdiction.”25
“The first step, then, in the inquiry, which the Constitution and laws impose on this court, is an
examination of the rightfulness of this claim.”
“America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided
into separate nations, independent of each other and of the rest of the world, having institutions
of their own and governing themselves by their own laws. It is difficult to comprehend the
proposition that the inhabitants of either quarter of the globe could have rightful original claims
The Federalist No. 11 (Alexander Hamilton) Edited by Clinton Rossiter, Signet Classic, pages 85-86 (1999).
31 U.S. 515 (1832).
31 U.S. at 542.
of dominion over the inhabitants of the other, or over the lands they occupied; or that the
discovery of either by the other should give the discoverer rights in the country discovered,
which annulled the preexisting rights of its ancient possessors.
After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science,
conducted some of her adventurous sons into this western world. They found it in possession of a
people who had made small progress in agriculture or manufacturers, and whose general
employment was war, hunting, and fishing.
Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the
several governments to whom they belonged or by whom they were commissioned, a rightful
property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous
people who occupied it? Or has nature, or the great Creator of all things, conferred these rights
over hunters and fishermen, on agriculturists and manufactures?
But power, war, conquest give rights, which, after possession are conceded by the world; and
which can never be controverted by those on whom they descend. We proceed, then to the actual
state of things, having glanced at their origin; because holding it in our recollection might shed
some light on existing pretensions.
The great maritime powers of Europe discovered and visited different parts of this continent at
nearly the same time. The object was too immense for any one of them to grasp the whole; and
the claimants were too powerful to submit to the exclusive or unreasonable pretensions of any
single potentate. To avoid bloody conflicts, which might terminate disastrously to all, it was
necessary for the nations of Europe to establish some principle which all would acknowledge,
and which should decide their respective rights as between themselves. This principle, suggested
by the actual state of things, was “that discovery gave title to the government by whose subjects
or by whose authority it was made against all other European governments, which title might be
consummated by possession.” 8 Wheat 573.
This principle, acknowledged by all Europeans because it was the interest of all to acknowledge
it, gave the nation making the discovery, as its inevitable consequence, the sole rights of
acquiring the soil and of making settlements on it. It was an exclusive principle which shut out
the right of competition among those who had agreed to it; not one of which could annul the
previous rights of those who had not agreed to it. It regulated the right given by discovery among
the European discoverers; but could not affect the rights of those already in possession, either as
aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man.
It gave the exclusive right to purchase, but did not found that right on a denial of the right of the
possessor to sell.
The relation between the Europeans and the natives was determined in each case by the
particular government which asserted and could maintain this preemptive privilege in the
particular place. The United States succeeded to all the claims of Great Britain, both territorial
and political; but no attempt, as far as is known, has been made to enlarge them.”26
“Soon after Great Britain determined on planting colonies in America, the king granted charters
to companies of his subjects who associated for the purpose of carrying the views of the crown
into effect and of enriching themselves. The first of these charters was made before possession
was taken of any part of the country. They purport, generally, to convey the soil, from the
Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally
willing and able to defend their possessions. The extravagant and absurd idea that the feeble
settlements made on the sea coast, or the companies under whom they were made, acquired
legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter
the mind of any man. They were well understood to convey the title which, according to the
common law of European sovereigns respecting America, they might rightfully convey, and not
more. This was the exclusive right of purchasing such lands as the natives were willing to sell.
The crown could not be understood to grant what the crown didn’t affect to claim; nor was it so
“[The charters] demonstrate the truth, that these grants asserted a title against Europeans only,
and were considered as blank paper so far as the rights of the natives were concerned.”28
“The actual state of things, and the practice of European nations, on so much of the American
continent as lies between the Mississippi and the Atlantic, explain their claims, and the charters
they granted. Their pretentions unavoidably interfered with each other; through the discovery of
one was admitted to exclude the claim of any other, the extent of that discovery was the subject
of unceasing contest….Not well acquainted with the exact meaning of words, nor supposing it to
be material whether they [Indians] were called the subjects, or the children of their father in
Europe; lavish in possessions of duty and affection, in return for the right presents they received;
so long as their actual independence was untouched, and their right to sell government
acknowledged, they were willing to profess dependence on the power which furnished supplies
of which they were in absolute need, and restrained dangerous intruders from entering their
country: and this was probably the sense in which the term was understood by them.
Certainly it is, that our history furnishes no example, from the first settlement of our country, of
any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther
than to keep out the agents of foreign powers, who, as traders or otherwise might seduce them
into foreign alliances. The king purchased their lands when they were willing to sell, at a price
they were willing to take; but never coerced a surrender of them. He also purchased their alliance
Id. at 542-543.
Id. at 544-545.
Id. at 546.
and dependence by subsidies; but never intruded into the interior of their affairs, or interfered
with their set government, so far as respected themselves only.”29
“…When the war of our revolution commenced. The influence of our enemy was established;
her resources enabled her to keep up that influence; and the colonists had much cause for the
apprehension that the Indian nation would, as the allies of Great Britain, add their arms to hers.
This, as was to be expected, became an object of great solicitude to Congress. Far from
advancing a claim to their lands, or asserting any right of dominion over them, Congress
resolved “that the securing and preserving the friendship of the Indian nations appears to be a
subject of the utmost moment to these colonies.”30
Marshall discusses in detail the Treaty of Hopewell that was made with the Cherokees at the end
of the American Revolution. Marshall concludes: “This Treaty contains a few terms capable of
being used in a sense which could not have been intended at the time, and which is inconsistent
with the practical construction which has always been put on them; but its essential articles treat
the Cherokees as a nation capable of maintaining the relations of peace and war; and ascertaining
the boundaries between them and the United States.31
“The Indian nations had always been considered as distinct, independent political communities,
retaining their original natural rights, as the undisputed possessors of the soil, from time
immemorial, with the single exception of that imposed by irresistible power, which, excluded
them from intercourse with any other European potentate that the first discoverer of the coast of
the particular region claimed: and this was a restriction which those European potentates
imposed on themselves, as well as the Indians. The very term “nation,” so generally applied to
them, means “a people distinct from others.” The Constitution, by declaring treaties already
made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned
the previous treaties with the Indian nations, and consequently admits their rank among those
powers who are capable of making treaties. The words “treaty” and “nation” are words of our
own language, selected in our diplomatic and legislative proceedings, by ourselves having each a
definite and well understood meaning we have applied them to Indians, as we have applied them
to the other nations of the earth. They are applied to all in the same sense.”32
“The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries
accurately described, in which the laws of Georgia can have no force, and which the citizens of
Georgia have not right to enter, but with the assent of the Cherokees themselves, or in
conformity with treaties, and with the acts of Congress. The whole intercourse between the
Id. at 546-547.
Id. at 549.
Id. at 554.
Id. at 559.
United States and this nation, is, by our constitution and laws, vested in the government of the
Justice M’Lean mentions in a concurring opinion the following: “The abstract right of every
section of the human race to a reasonable portion of the soil, by which they acquire the means of
subsistence, cannot be controverted, and it is equally clear, that the range of nations or tribes,
who exist in the hunter state, may be restricted within reasonable limits. They shall not be
permitted to roam, in the pursuit of game, over an extensive and right country, whilst in other
parts, human beings are crowded so closely together, as to render the means of subsistence
precarious. The law of nature, which is paramount to all other laws, gives the right to every
nation, to the enjoyment of a reasonable extent of country, so as to derive the means of
subsistence from the soil.
In this view perhaps, our ancestors, when they first migrated to this country, might have taken
possession of a limited extent of the domain, had they been sufficiently powerful, without
negotiation or purchase from the native Indians. But this course is believed to have been nowhere
taken. A more conciliatory mode was preferred, and one was better calculated to impress the
Indians, who were then powerful, with a sense of the justice of their white neighbors. The
occupancy of their lands was never assumed, except upon the basis of contract, and on the
payment of a valuable consideration.”34
“At no time has the sovereignty of the country been recognized as existing in the Indians, but
they have been always admitted to possess many of the attributes of sovereignty. All the rights
which belong to self government have been recognized as vested in them. Their right of
occupancy has never been questioned but the fee in the soil has been considered in the
government. This may be called the right to the ultimate domain, but the Indians have a present
right of possession.”35
“It is said that these treaties are nothing more than compacts, which cannot be considered as
obligatory on the United States, from a want of power in the Indians to enter into them.
What is a treaty? The answer is, it is a compact formed between two nation or communities,
having the right of self government.
Is it essential that each party shall possess the same attributes of sovereignty, to give force to the
treaty? This will not be pretended: for, on this ground very few valid treaties could be formed.
The only requisite is, that each of the contracting parties shall possess the right of self
government, and the power to perform the stipulation of the treaty.”36
Id. at 561.
Id at 579-580.
Id. at 580.
Id. at 581.
“It must be admitted that the Indians sustain a peculiar relation to the United States. They do not
constitute, as was declared at the last term, a foreign state, so as to claim the right to sue in the
Supreme Court of the United States: and yet, having the right of self government, they in some
sense, form a state. In the management of their internal concerns, they are dependent on no
earthly tribunal. They make war and form treaties of peace. The exercise of these and other
powers, gives to them a distinct character as a people, and constitutes them, in some respects, a
state, although they may not be admitted to possess the right of soil.”37
“The humane policy of the government towards these children of the wilderness must afford
pleasure to every benevolent feeling; and if the efforts made have not proved as successful as
was anticipated, still much has been done. Whether the advantages of this policy should not have
been held out by the government to the Cherokees within the limits of Georgia, as an inducement
of them to change their residence and fix it elsewhere, rather than by such means to increase their
attachment to their present home, as has been insisted on, is a question which may be considered
by another branch of the government. Such a course might, perhaps, have secured to the
Cherokee Indians all the advantages they have realized from the paternal superintendence of the
government; and have enabled it, on peaceful and reasonable terms, to comply with the act of
“Much has been said against the existence of an independent power within a sovereign state; and
the conclusion has been drawn, that the Indians, as a matter of right, cannot enforce their own
laws within the territorial limits of a state. The refutation of this argument is found in our past
That fragments of tribes, having lost the power of self-government, and who lived within the
ordinary jurisdiction of a state, having been taken under the protection of the laws, have already
been admitted. But there has been no instance, where the state laws have been generally
extended over a numerous tribe of Indians, luring within the state, and exercising the right of
self-government, until recently.”39
“It will scarcely be doubted by anyone, that, so far as the Indians, as distinct communities,
having formed a connection with the federal government, by treaties; that such connection is
political, and is equally binding on both parties. This cannot be questioned, except upon the
ground, that in making these treaties, the federal government has transcended the treaty-making
power. Such an objection, it is true, has been stated, but it is one of modern invention, which
arises out of local circumstances; and is not only opposed to the uniform practice of the
government, but also to the letter and spirit of the constitution.”40
Id. at 581.
Id. at 588.
Id. at 589-590.
Id. at 593.
“The exercise of the power of self-government by the Indians, within a state, is undoubtedly
contemplated to be temporary. This is shown by the settled policy of the government, in the
extinguishment of their title, and especially by the compact with the state of Georgia. It is a
question, not of abstract right, but of public policy. I do not mean to say, that the same moral rule
which should regulate the affairs of private life should not be regarded by communities or
nations. But a sound national policy does require that the Indian tribes within our states should
exchange their territories, upon equitable principle, or, eventually, consent to become
amalgamated in our political communities.
At best they can enjoy a very limited independence within the boundaries of a state, and such a
residence must always subject them to encroachments from the settlements around them; and
their existence within a state, as a separate and independent community, may seriously endanger
of obstruct the operation of the state laws. If, therefore, it would be inconsistent with the political
welfare of the states, and the social advance of their citizens, that an independent and permanent
power should exist within their limits, this power must give way to the greater power which
surrounds it, or seek its exercise beyond the sphere of state authority.
This state of things can only be produced by a co-operation of the state and federal governments.
The latter has the exclusive regulation of intercourse with the Indians; and, so long as their
power shall be exercised, it cannot be obstructed by the state.
The Discovery Doctrine
One may argue that the Discovery Doctrine was essential in an expanding colonial period. The
two U.S. Supreme Court decisions previously discussed provide the U.S. legal foundation for the
doctrine. All the European nations applied the Discovery Doctrine in one form or another. In
Article I of the U.S. Constitutions the federal Congress is granted the power “to regulate
commerce with foreign nations, and among the several states, and with the Indian Tribes.”41 All
branches of the federal government applied the Doctrine of Discovery in some manner. The
expedition of Lewis and Clark may be seen as an assertion of the Doctrine of Discovery.
Several concepts from the Doctrine of Discovery still apply within the United States in modern
times. The Supreme Court wrote that the Commerce Clause “provides Congress with plenary
power to legislate in the field of Indian affairs.”42 As a result of plenary power, the United States
has “charged itself with moral obligations of the highest responsibility and trust” and judges its
own conduct “by the most exacting fiduciary standards.”43 As a result of their subordinate status
tribes have diminished sovereignty, and thus, for example, jurisdiction to criminally prosecute
non-Indians would be “inconsistent with their status.”44
U.S. Constitution Article I, Sec. 8, Clause 3.
Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989).
Seminole Nation v. United States, 316 U.S. 286, 297 (1942).
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208. (1977)
Only in recent decades has the legal status of Indian tribes been based upon more equality. The
Indian Claims Commission created in 1946, was an attempt to comprehensively address all
Indian claims without the necessity of specific legislation enacted on a case-by-case basis.45 In
1966 legislation authorized any tribe recognized by the Secretary of the Interior to sue in federal
District Court regarding claims based upon treaties, statutes, or the Constitution.46 In 1968 the
U.S. Supreme Court held that individual Indians could sue to enforce personal interests in the
leases of their allotted real estate without joining the United States as a plaintiff.47 Much
litigation concerning old wrongs has resulted.
At the same time, after World War II, there was a global decline in colonialism. With regard to
Native American land, the U.S. legal system regards land as a fungible good and does not
consider the cultural and religious significance of various locations.48 This theme runs contrary
to the recognition of the cultural destruction caused by global colonialism. The old litigation
between the Lakota Sioux and the United States illustrates this concept.
In 1980 the U.S. Supreme Court held that an 1877 statute that attempted to end Indian titles in
the Black Hills was an unconstitutional taking of sacred locations.49 The Court provided
monetary compensation which the Sioux have rejected, insisting upon the return of the land. The
Courts have taken the position that the monetary judgment prevents any claim to the land.50
Indians view the offer of money as a colonial gesture. An examination of the modern
implications of the Discovery Doctrine is appropriate.
The Tidelands Controversy
Since the time of the Republic of Texas, Texas had claimed ownership of land up to three
leagues (10.35 miles) into the Gulf of Mexico. In 1939 Texas had earmarked tideland revenue
for the public school fund. The Texas claim was based upon the 1845 Joint Resolution of
Annexation that stipulated that Texas as a state would retain its public lands.
In the Middle Ages many nations asserted ownership of marginal sea areas.51
In 1704, Cornelius van Bynkershoek purposed that the distance of a cannon shot be the limits of
marginal sea ownership. In 1782 Fernando Galiani suggested that the distance of a cannon shot
be standardized at three miles. Subsequently, several nations adopted this standard.52
25 U.S.C. Sec. 70-70v (repealed in 1978).
28. U.S.C. Sec. 1362
Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968).
See, e.g., Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988).
United States v. Sioux Nation, 448 U.S. 371 (1980).
See Oglala Sioux Tribe v. United States, 650 F.2d 140 (Eighth Cir. 1981) and Oglala Sioux Tribe v. Homestake
Mining Co., 722 F.2d 1407 (Eighth Cir. 1983).
See Charles G. Fenwick, “International Law,” (New York, 1918), 417
See M.W. Mouton, “The Continental Shelf” (The Hague, 1952), 195-200, 376.
The U.S. Constitution provided four ways by which the federal government could gain control of
state lands: by being ceded, by purchase, by eminent domain, and by reservation by the federal
government in the act admitting the state to the Union.
An open question was whether the federal powers to control defense implied jurisdiction over the
marginal seas? The Northwest Ordinance (1787) stated that new states would be admitted “…on
an equal footing with the original states in all respects whatsoever.”53 Does “all respects” mean
political so that each new state would have two Senators and at least one representative? Does it
mean property so that each state would own its marginal sea?
The 1845 U.S. Supreme Court decision in Pollard’s Lessee v. Hagan54 involved litigation over
the same offshore area in Mobile Bay. One claimant had an Alabama title and the other claimant
had a title granted by the United States after Alabama had been admitted as a state. The U.S.
Supreme Court applied the equal footing language to uphold the Alabama title. This precedent
was followed by at least thirty one decisions between 1845 and 1938.55
In the 1819 Transcontinental Treaty with Spain, the U.S. renounced any claim to territory in
modern Texas. The U.S. limited its territorial claims to lands north and east of the Sabine River.
The boundary began “…on the Gulf of Mexico, at the mouth of the River Sabine, in the sea.”56
What did “in the sea” mean? If it meant the marginal sea, then the U.S. had renounced any claim
to lands in the Gulf of Mexico off the Texas coast. If it meant the shoreline, then the U.S. had not
renounced possible claims.
Texas’ marginal sea claims were based upon Spanish law. In the eighteenth century, Spain and
Portugal asserted a two league boundary.57 With independence in 1821, Mexico acquired Spain’s
claim to the marginal sea in the Gulf of Mexico. Likewise, when Texas became independent
from Mexico in 1836, it acquired Mexico’s claims. These claims were indirectly recognized by
nations that granted diplomatic recognition to the Republic of Texas. Such diplomatic relations
were granted by the United States in 1837, by England and Holland in 1840, and by France in
In 1836 the Republic of Texas legislature extended jurisdiction to boundaries”…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.”58 While that legislation expanded the two league precedent,
Texas, as an independent republic, was not violating any generally accepted international law.59
Henry Steele Commanger, ed., “documents of American History” (new York, 1968), 131.
Pollard’s Lessee v. Hagan, 44 U.S. 212 (1845).
Congressional Digest, October 1948, 233.
Hunter Miller, “Treaties and Other International Acts of the United States of America” (8 Vols.; Washnington,
1934, III, 5.
J.L. Brierly, “The Law of Nations, and Introduction to the International Law of Peace.” (New York, 1963), 204.
H.P.N Gammel, “The Laws of Texas, 1822-1897” (Ten vols.; Austin, 1938), I, 1193.
“Brief for the State of Texas in Opposition to Motion for Judgment,” United State v. Texas, 63-69.
The Republic of Texas did not renounce claims to the marginal sea when joining the United
States. Had the U.S. Senate ratified a Treaty of Annexation written by Secretary of State Abel P.
Upshur and his successor, John C. Calhoun, Texas would have renounced such claims. Under
this proposed treaty, Texas would have ceded all of its public lands and public debts to the
United States. The public debts were estimated at $10-13 million while the public lands were
considered by some Senators to be worthless. This consideration, but chiefly the issue of the
extension of slavery, caused the Senate to reject this treaty.
In the Tyler administration, Congress did pass a joint resolution annexing Texas. In the relevant
section, Texas retained: “…all of the public funds, debts, taxes, and dues of every kind which
may belong to or be due and owing said Republic; and shall also retain all the vacant and
unappropriated lands lying written its limits, to be applied to the payment of the debts and
liabilities of said Republic of Texas, and the residue of said lands, after discharging said debts
and liabilities, to be disposed of as said state may direct; but in no event are said debts and
liabilities to become a charge upon the government of the United States.”60
However, other language stated that the Republic of Texas ceded to the United States: “…all
public edifices, fortifications, barracks, ports, and harbors, navy and navy-yards, docks,
magazines, arms, armaments, and all other property and means pertaining to the public
defense…”61 Focusing on “public defense,” it could be argued that Texas had ceded any
marginal seas claims.
As originally prepared, the Joint Resolution contained a section declaring Texas to be admitted
on an equal footing with the existing states. This section was never presented to the Congress of
the Republic of Texas. In December, 1845, the U.S. Congress passed a resolution declaring
Texas to be “…on an equal footing with the original states in all respects whatsoever.”62
Consequently the issue of equal footing was ambiguous.
In 1846, the Texas legislature reaffirmed the declarations of the Republic of Texas including the
three league boundary. The Treaty of Guadalupe Hidalgo that in 1848 ended the Mexican War
also stated in Article V that “…the boundary line between the two Republics shall commence in
the Gulf of Mexico three leagues from land, opposite the month of the Rio Grande…”63
When presenting the Treaty to the U.S. Senate, President Polk stated: “The public lands within
the limits of Texas belong to that State, and this government has no power to dispose of them or
to change the conditions of grants already made.”64 In 1850, the Texas legislature passed a joint
resolution that stated: “all that territory [boundaries defined] in the treaty between the United
Miller, “Treaties and other International Acts,” IV., 690.
Id. at 689.
The Statutes at Large of the United States of America” (89 Vols,; Washington, 1918), IX, 108.
Miller, Treaties and Other International Acts, V, 213.
James D. Richardson, a Compilation of the Message and Papers of the Presidents (Ten Vols.; Washington, 1910),
States and the late Republic of Texas of right belong to the state of Texas, is included within her
rightful civil and political jurisdiction, and the state of Texas will maintain the integrity of her
territory.”65 The Gadsden Treaty of 1853 declared the boundary to be “…in the Gulf of Mexico,
three leagues from land…”66
In the late 1930s the attitude of the U.S. government concerning the Tidelands began to change.
Oil companies who did not hold state offshore leases appealed to numerous federal officials. In
particular, Secretary of the Interior Harold Ickes advocated greater federal control of natural
resources. The economic potential of this land was being understood and as Texas governor
Allred stated: “I know what the tendency is. I know that when lands become valuable someone
wants to get them.”67 A variety of legislative and political maneuvers resulted.
There was an attempt to divide California and Texas on the issue. California’s attorney General,
Earl Warren, subsequently Chief Justice of the U.S. Supreme Court stated that “…if they [federal
officials] take California’s tidelands through the adoption of this [California specific] legislation
they will in all probability be back as a matter of right to do the same thing in the case of
Texas…and all other coastal states.”68 Senator Tom Connally of Texas testified in a similar
To rationalize the ownership of the land, the state control advocates asserted that the issue was
one of legal title. The federal advocate framed the issue as one of national security and having
the necessary petroleum for that purpose. After World War II, those who favored state control
sought congressional action and those who favored federal control wanted a judicial decision.
In 1945 the state control advocates introduced legislation that would quitclaim to the states any
federal claims to the land. The Interior Department refused to deny applications for federal
mineral leases and questioned state claims of title. State ownership advocates asserted that so
long as the U.S. questioned Texas ownership, oil companies would be reluctant to secure leases.
As Jennings of Tennessee noted: “No sane man with money, and with sense enough to have
money, would buy a lawsuit with the federal government under the present set-up.”69
On August 1, 1946, President Truman vetoed H.J.R. 225, a Quitclaim to the States Resolution,
on the grounds that the question was currently before the U.S. Supreme Court. At this time briefs
had been filed in the California case. Truman’s veto message stated that “The Congress is not an
appropriate forum to determine the legal issue now before the court. The jurisdiction of the
Gammel, the Laws of Texas, III, 646.
Miller, Treaties and Other International Acts, VI, 294.
Hearings before the House Judiciary Committee on S.J. 208, 74 Congress, Third Session (1938), 75.
Hearings before the Senate Committee on Public Lands and surveys on S.J.R. 83 and 92, 76 Congress, First
Session (1939), 370.
69 th st
Hearings before the House Judiciary Committee on H.J.R. 118, 79 congress, 1 session (1945).
Supreme Court should not be interfered with while it is arriving at its decision in the pending
case.”70 The President’s veto was sustained.
United States v. California
U.S. v. California71 created the foundation for subsequent U.S. Supreme Court Tidelands
decisions. Truman instructed his Attorney General, Tom Clark of Texas, to sue California and a
complaint was filed on October 19, 1945 by the Justice Department. The case was directly
brought to the Supreme Court under its original jurisdiction as provided in the U.s. Constitution’s
Article III, Section 2.
The Supreme Court wrote: “The crucial question on the merits is not merely who owns the bare
legal title to the lands under the marginal sea. The United States here asserts rights in two
capacities transcending those of a mere property owner. In one capacity it asserts the right and
responsibility to exercise whatever power and dominion are necessary to protect this country
against dangers to the security and tranquility of its people incident to the fact that the United
States is located immediately adjacent to the ocean. The Government also appears in its capacity
as a member of the family of nations. In that capacity it is responsible for conducting United
States relations with other nations. It asserts that proper exercise of these constitutional
responsibilities requires that it have power, unencumbered by state commitments, always to
determine what agreement will be made concerning the control and use of the marginal sea and
the land under it. [Citations omitted.] In the light of the foregoing, our question is whether the
state or the Federal Government has the paramount right and power to determine in the first
instance when, how, and by what agencies, foreign or domestic, the oil and other resources of the
soil of the marginal sea, known or hereafter discovered, may be exploited.”72 “It would unduly
prolong our opinion to discuss in detail the multitude of references to which the able briefs of the
parties have cited as with reference to the evolution of powers over marginal seas exercised by
adjacent countries. From all the wealth of material supplied, however, we cannot say that the
thirteen original colonies separately acquired ownership to the three-mile belt or the soil under it,
even if they did acquire elements of the sovereignty of the English Crown by their revolution
against it. [citations omitted.]
At the time this country won its independence from England there was not settled international
custom or understanding among nations that each nation owned a three-mile water belt along its
borders. Some countries, notably England, Spain, and Portugal, had, from time to time, made
sweeping claims to a right of dominion over wide expanses of ocean. And controversies had
arisen among nations about rights to fish in prescribed areas. But, when this nation was formed,
the idea of a three-mile belt over which a littoral nation could exercise rights of ownership was
but a hebulous suggestion. Neither the English charters granted to this nation’s settlers, nor the
Veto Message, August 1, 1946, Truman Papers.
332 U.S. 19 (1947).
332 U.S. at 29.
treaty of peace with England, nor any other document to which we have been referred, showed a
purpose to set apart a three-mile ocean belt for colonial or state ownership. Those who settled
this country were interested in lands upon which to live, and waters upon which to fish and sail.
There is no substantial support in history for the idea that they wanted or claimed a right to block
off the ocean’s bottom for private ownership use in the extraction of its wealth.”73
“[Citations omitted.] It did happen that shortly after we became a nation our statesmen became
interested in establishing national dominion over a definite marginal zone to protect our
neutrality. Largely as a result of their efforts, the idea of a definite three-mile belt in which an
adjacent nations can, if it chooses, exercise broad, if not complete dominion, has apparently at
last been generally accepted throughout the world, although as late as 1876 there was still
considerable doubt in England about its scope and even its existence. [Citation omitted] and this
assertion of national dominion over the three-mile belt is binding upon this court.” [Citations
“Not only has acquisition, as it were, of the three-mile belt been accomplished by the National
Government, but protection and control of it has been and is a function of national external
sovereignty. [Citation omitted.] The belief that local interests are so predominant as
constitutionally to require state dominion over lands under its landlocked navigable waters finds
some argument for its support. But such can hardly be said in favor of state control over any part
of the ocean or the ocean’s bottom. This country throughout its existence has stood for freedom
of the seas, a principle whose breach has precipitated wars among nations. The country’s
adoption of the three-mile belt is by no means incompatible with its traditional insistence upon
freedom of the sea, at least so long as the national government’s power to exercise control
consistently with whatever international undertaking or commitments it may see fit to assume in
the national interest is unencumbered. [Citations omitted.] The three-mile rule is but a
recognition of the necessity that a government next to the sea must be able to protect itself from
dangers of dominion and regulation in the interest of its revenues, its wealth, and the security of
its people from wars waged on or too near its coasts and insofar as the nation asserts its rights
under international law, whatever of value may be discovered in the seas next to its shores and
within its protective belt, will most naturally be appropriated for its use. But whatever any
nations does in the open sea, which detracts from its common usefulness to nations, or which
another nation may charge detracts from it, is a question for consideration among nations as
such, and not their separate governmental units. What this government does, or even what the
states do, anywhere in the ocean, is a subject upon which the nation may enter into and assume
treaty or similar international obligations. [Citation omitted.] The very oil about which the state
and nation here contend might well become the subject of international dispute and settlement.”75
332 U.S. at 32-33.
332 U.S. at 33.
332 U.S. at 34-35.
“The ocean, even its three-mile belt, is thus of vital consequence to the nation in its desire to
engage in commerce and to live in peace with the world; it also becomes of crucial importance
should it ever again become impossible to preserve that peace and so peace and world commerce
are the paramount responsibilities of the nation, rather than an individual state, so, if wars come,
they must be fought by the nation, rather than an individual state. [Citation omitted.] The state is
not equipped in our constitutional system with the powers or the facilities for exercising the
responsibilities which would be concomitant with the dominion which it seeks. Conceding that
the state has been authorized to exercise local police power functions in the part of the marginal
belt within its declared boundaries, these do not detract from the federal government’s
paramount rights in and power over this area. Consequently, we are not persuaded to transplant
the Pollard rule [Pollard vs. Hagan, 44 U.S. 212 (1845)] of ownership as an incident of state
sovereignty in relation to inland waters out into the soil beneath the ocean, so much more a
matter of national concern. If this rationale of the Pollard case is a valid basis for a conclusion
that paramount rights run to the states in inland waters to the shoreward of the low water mark,
the same rationale leads to the conclusion that national interests, responsibilities, and therefore
national rights are paramount in waters lying to the seaward in the three-mile belt.[Citations
“As previously stated, this court has followed and reasserted the basic doctrine of the Pollard
case many times, and in doing so it has 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. All of these statements were, however, merely paraphrases or offshoots of the Pollard
inland-water rule, and were used, not as enunciation of a new ocean rule, but in explanation of
the old inland-water principle. Notwithstanding the fact that none of these cases either involved
or decided the state-federal conflict presented here, we are urged to say that the language used
and repeated in those cases forecloses the government from the right to have this court decide
that question now that it is squarely presented for the first time.
There are three such cases whose language probably lands more weight to California’s argument
than any other. The first is Manchester v. Massachusetts, 139 U.S. 240. That case involved only
the power of Massachusetts to regulate fishing. Moreover, the illegal fishing charged was in
Buzzards Bay, found to be within Massachusetts territory, and not question whatsoever was
raised or decided as to title or paramount rights in the open sea. And the Court specifically laid to
one side any question as to the rights of the federal government to regulate fishing there. The
second case, Louisiana v. Mississippi, 202 U.S. 1, 52 uses language about “the sway of the
riparian states” over “maritime belts.” That was a case involving the boundary between
Louisiana and Mississippi. It did not involve any dispute between the federal and state
governments. And the Court there specifically laid aside questions concerning “the breadth of the
maritime belt or the extent of the sway of the riparian states…” Id. at 52. The third case is the
332 U.S. at 35-26.
Abby Dodge, 223 U.S. 166. That was an action against a ship landing sponges at a Florida port
in violation of an act of Congress. 34 stat. 313, which made it unlawful to “land” sponges taken
under certain conditions from the waters of the Gulf of Mexico. This Court construed the
statute’s prohibition as applying only to sponges outside the state’s “territorial limits” in the
Gulf. It thus narrowed the scope of the statute because of a belief that the United States was
without power to regulate the Florida traffic in sponges obtained from within Florida’s territorial
limits, presumably the three-mile belt. But the opinion in that case was concerned with the state’s
power to regulate and conserve within its territorial waters, not with its exercise of the right to
use and deplete resources which might be of national and international importance, and there was
no argument there, nor did this court decide whether the federal government owned or had
paramount rights in the soil under the Gulf waters. That this question remained undecided is
evidenced by Skiriotes v. Florida, 313 U.S. 69, 75 where we had occasion to speak of Florida’s
power over sponge-fishing in its territorial waters. Though Mr. Chief Justice Hughes we said, “it
is also clear that Florida has an interest in the proper maintenance of the sponge fishery and that
the [state] statute so far as applied to conduct within the territorial waters of Florida in the
absence of conflicting federal legislation, is within the police power of the state.” (Emphasis
“None of the foregoing cases, nor others which we have decided, are sufficient to require us to
extend the Pollard inland-water rule so as to declare that California owns or has paramount rights
in or power over the three-mile belt under the ocean. The question of who owned the bed of the
sea only became of great potential importance at the beginning of this century when oil was
discovered there. As a consequence of this discovery, California passed an Act in 1921
authorizing the granting of permits to California residents to prospect for oil and gas on blocks of
land off its coast under the Ocean. Cal. Stats 1921, c. 303. This statute, and others which
followed it, together with the leasing practices under them, have precipitated this extremely
important controversy, and pointedly raised this state-federal conflict for the first time. Now that
the question is here, we decide for the reasons we have stated that California is not the owner of
the three-mile marginal belt along its coast, and that the federal government rather than the state
has paramount rights in and power over that belt, an incident to which is full dominion over the
resources of the soil under that water area, including oil.”78
“Nor can we agree with California that the federal government’s paramount rights have been lost
by reason of the conduct of its agents. The state sets up such a defense, arguing that by this
conduct the government is barred from enforcing its rights by reason of principles similar to
laches, estoppel, or adverse possession. It would serve no useful purpose to recite the incidents in
detail upon which the state relies for these defenses. Some of them are undoubtedly consistent
with a belief on the part of some government agents at the time that California owned all, or at
least a part of the three-mile belt. This belief was indicated in the substantial number of instances
332 U.S. at 36-38.
332 U.S. at 39.
in which the government acquired title from the states to lands located in the belt; some decisions
of the Department of Interior have denied applications for federal oil and gas leases in the
California coastal belt on the ground that California owned the lands. Outside of court decisions
following the Pollard rule, the foregoing are the types of conduct most nearly indicative of
waiver upon which the state relied to show that the Government has lost its paramount rights in
the belt. Assuming that Government agents could by conduct, short of a Congressional surrender
of title or interest preclude the Government from asserting its legal rights, we cannot say it has
done so here. As a matter of fact, the record plainly demonstrates that until the California oil
issue began to be pressed in the thirties, neither the states nor the government had reason to focus
attention on the question of which of them owned or had paramount rights in or power over the
three-mile belt and even assuming that Government agencies have been negligent in failing to
recognize or assert the claims of the Government at an earlier date, the great interests of the
Government in this ocean area are not to be forfeited as a result. The Government, which holds
its interests here as elsewhere in trust for all the people, is not to be deprived of those interests by
the ordinary court rules designed particularly for private disputes over individually owned pieces
of property; and officers who have no authority at all to dispose of Government property cannot
by their conduct cause the government to lose its valuable rights by their acquiescence’s, laches,
or failure to act.”79
“We have not overlooked California’s argument buttressed by earnest briefs on behalf of other
states, that improvements have been made along and near the shores at great expense to public
and private agencies, and we note that Government’s suggestion that the aggregate value of all
these improvements are small in comparison with the tremendous value of the entire three-mile
belt here in controversy. But however this may be, we are faced with the issue as to whether state
or nation has paramount rights in and power over this ocean belt, and that great national question
is not dependent upon what expenses may have been incurred upon mistaken assumptions.
Furthermore, we cannot know how many of these improvements are within and how many
without the boundary of the marginal sea which can later be accurately defined. But beyond all
this we cannot and do not assume that Congress, which has constitutional control over
Government property, will execute its powers in such way as to bring about injustices to states,
their subdivisions, or person acting pursuant to their permission. [Citations omitted.]”80
“We hold that the United States is entitled to the relief prayed for.”81 Justice Jackson did not
participate in the decision while Justices Reed and Frankfurter dissented.
Justice Reed in dissent stated that “the determination as to the ownership of the land in
controversy turns for me on the fact as to ownership in the original thirteen states of similar lands
prior to the formation of the Union. If the original states owned the bed of the sea, adjacent to
332 U.S. at 39-40.
332 U.S. at 40.
332 U.S. at 40.
their coasts, to the three-mile limit, then I think California has the same title or ownership to the
lands adjacent to her coast. The original states were sovereignties in their own right, possessed of
so much of the land underneath the adjacent seas as was generally recognized to be under their
jurisdiction. The scope of their jurisdiction and the boundaries of their lands were coterminous.
Any part of that territory which had not passed from their ownership by existing valid grants
were and remained public lands of the respective states. California, as is customary, was
admitted into the Union “on an equal footing with the original States in all respects whatsoever.”
9 Stat. 452. By section 3 of the Act of Admission, the public lands within its borders were
reserved for disposition by the United States. “Public Lands” was there used in its usual sense of
lands subject to sale under general laws. As was the rule title to lands under navigable waters
vested in California as it had done in other states.
The authorities cited in the Court’s opinion lead me to the conclusion that the original states
owned the lands under the seas to the three-mile limit. There were, of course, as is shown by the
citations, variations in the claims of sovereignty, jurisdiction or ownership among the nations of
the world. As early as 1793, Jefferson as Secretary of State, in a communication to the British
minister, said that the territorial protection of the United States would be extended “three
geographical miles” and added: “This distance can admit of no opposition, as it is recognized by
treaties between some of the powers with whom we are connected in commerce and navigation,
and is as little, or less, than is claimed by any of them on their own coasts.” [Citation omitted].”82
“If the original states did claim, as I think they did, sovereignty and ownership to the three-mile
limit, California has the same rights in the lands bordering its littoral.
This ownership in California would not interfere in any way with the needs or rights of the
United States in war and peace. The power of the United States is plenary over these undersea
lands precisely as it is over every river, farm, mine, and factory of the nation. While no square
ruling of this court has determined the ownership of those marginal lands, to me the tone of the
decisions dealing with similar problems indicates that, without discussion, state ownership has
been assumed. [Citations omitted.]”83
Justice Frankfurter in dissent wrote: “…even if we assume an absence of ownership or
possessory interest on the part of California, that does not establish a proprietary interest in the
United States. It is significant that the Court does not adopt the Government’s elaborate
argument, based on dubious and tenuous writings of publicists [citations omitted], that this part
of the open sea belongs, in a proprietary sense, to the United States [citation omitted]. Instead,
the Court finds trespass against the United States on the basis of what it calls the “national
dominion by the United States over this area.”84
332 U.S. at 42.
332 U.S. at 42-43.
332 U.S. at 43.
“To speak of “dominion” carries precisely those overtones in the law which relate to property
and not to political authority….Of course, the United States has “paramount rights” in the sea
belt of California – the rights that are implied by the power to regulate interstate and foreign
commerce, the power of condemnation, the treaty-making power, the war power. We have not
now before us the validity of the exercise of any of these paramount rights. Rights of ownership
are here asserted – and rights of ownership are something else. Ownership implies acquisition in
the various ways in which land is acquired – by conquest, by discovery and claim, by cession, by
prescription, by purchase, by condemnation. When and how did the United States acquire this
The fact that these oil deposits in the open sea may be vital to the national security, and
important elements in the conduct of our foreign affairs, is no more relevant than is the existence
of uranium deposits, wherever they may be, in determining questions of trespass to the land of
which they form a part. This is not a situation where an exercise of national power is actively and
presently interfered with….Nor is it relevant that “the very oil about which the state and nation
here contend might well become the subject of international dispute and settlement.” It is
common knowledge that uranium has become “the subject of international dispute” with a view
to settlement. [citation omitted.]85
“To declare that the Government has “national dominion” is merely a way of saying that vis-à-
vis all other nations the Government is the sovereign. If it means more than that, it implies that
the Government has some proprietary interest. That has not been remotely established except by
sliding from absence of ownership by California to ownership by the United States.
Let us assume, for the present, that ownership by California cannot be proven. On a fair analysis
of all the evidence bearing on ownership, then, this area is, I believe to be deemed unclaimed
land, and the determination to claim it on the part of the United States is a political decision not
for this Court. [Emphasis added.] The Constitution places vast authority for the conduct of
foreign relations in the independent hands of the President. [Citation omitted.] It is noteworthy
that the Court does not treat the President’s proclamation in regard to this disputed area as an
assertion of ownership. See Exec Proc. 2667 (Sept. 28, 1945) 10 F.R. 12303. If California is
found to have no title and this area is regarded as unclaimed land, I have no doubt that the
President and the Congress between them could make it part of the national domain and thereby
bring it under Article IV, Section 3, of the Constitution. The disposition of the area, the rights to
be created in it, the rights heretofore claimed in it through usage that might be respected through
it fall short of prescription, all raise appropriate questions of policy, questions of
accommodation, for the determination of which Congress and not this Court is the appropriate
322 U.S. at 44.
Today this Court has decided that a new application even in the old field of torts should not be
made by adjudication, where Congress has refrained from action. United States v. Standard Oil
Co., 332 U.S. 301. Considerations of judicial self-restraint would seem to me far more
compelling where there are obviously at stake claims that involve so many far-reaching
complicated, historic interests, the proper adjustments of which are not readily resolved by the
materials and methods to which this Court is confined.”86
Clearly the California decision had significant political ramifications as well as petroleum
production implications. One result was Texas legislation that purported to expand the state
boundaries to twenty-seven miles into the Gulf of Mexico, the edge of the Continental Shelf.
President Truman by proclamation on September 28, 1945, had stated: “…the Government of the
United States regards the natural resources of the subsoil and sea bed of the continental shelf
beneath the high seas but continuous to the coasts of the United States as appertaining to the
United States, subject to its jurisdiction and control.”87 The federal government and Texas were
on a conflict course.
In the 1948 federal Congress, House Bill 5992, quitclaiming federal claims to the margin seas to
the states, passed the House of Representatives but died in the Senate.88
In the 1948 Presidential election, Republican candidate Dewey expressed support for state
ownership. President Truman; however, during the campaign stated that Texas was in a special
category, having entered the Union by treaty, Strom Thurmond of South Carolina did not draw
enough Democratic votes in Texas to prevent Truman from carrying Texas by a wide margin
Shortly after the election, Truman instructed U.S. attorney General Tom Clark to bring legal
action concerning the Tidelands claims of Texas and Louisiana.
The Brief for the State of Texas
Texas filed an exhaustive 240 page brief, exclusive of memoranda and appendix, on, March 25,
1950 with the U.S. Supreme Court. This brief attempted to distinguish the Courts decision in
U.S. v. California in that: “Texas, being the original sovereign and proprietor over these lands
and minerals, and not having ceded them to the United States, presents an entirely different case
which requires entirely different treatment.” 89
The brief provided an exhaustive historical analysis and political legal discussion to demonstrate
that the Tidelands belonged to the State of Texas. Texas argued that the ownership and
proprietary rights of the Republic of Texas in the Tidelands and subsurface minerals were not
322 U.S. at 45-46.
87 st st
See, hearings on S. 155, S. 923, S. 1545, S. 1700, and S. 2153, 81 Congress, 1 Session (1949).
Brief for the State of Texas in Opposition to Motion for Judgment, page 17.
ceded to the United States by the annexation agreement. This agreement was asserted to be a
treaty with all rules applicable to treaties applying.
Citing recent cases, the ‘brief argues “…that the term “public land” or “lands” frequently
includes submerged lands. For example, in Hynes v. Grimes Packing Co., 447 U.S. 86 (1949),
the Court held that “public lands” as used in a statute authorizing the Secretary of Interior to
designate as an Indian reservation any area of land which had been reserved for use and
occupancy of Indians or Eskimos by prior statute, together with additional “public lands”
adjacent thereto within the territory of Alaska, or any other “public lands” actually occupied by
Indians or Eskimos, did not refer only to land above low tide but could be interpreted to include
The body of lands known as Annette Islands was held to include surrounding waters as well as
the upland in Alaska Pacific Fisheries v. United States, 348 U.S. 78 (1918). In reaching this
conclusion, the Court considered the circumstances under which the reservation was created and
the fact that the statute had been always treated as reserving the adjacent fishing grounds as well
as the upland.
Plaintiff does not undertake to examine the legal meaning in 1845 of the expression “all of the
vacant and unappropriated lands lying within its limits.” It urged, however, on the basis of
intention, that the marginal sea “is not within the class of ‘vacant and unappropriated lands,’
“Because (1) the sole purpose of the reservation was to give Texas the means to pay off its debt
and (2) the expression “vacant and unappropriated lands” is equivalent to “public lands,” which
were not subject to sale to pay the debt.”90
Texas also argued that “the defense, equal footing, boundary adjustment, proper territory, and
national sovereignty provisions, referring only to governmental powers, show no intention of
enlarging the cession of property to be made to the United States.”91
The “equal footing” clause was argued by Texas “…never to convey any property or control of
lands to the United States. Instead, it is plain that the clause is intended for the benefit of new
states, and, on well-settled principles of construction, if such clause is effective for any purpose,
it is to create rights in such states, not to transfer property to the United States.”92
Furthermore, Texas asserted, “the long-continued possession of these lands and minerals by the
Republic and State of Texas, acquiesced in and approved by the United States, precludes an
assertion by the United Sates of rights inconsistent therewith.”93
Brief for the State of Texas in Opposition to Motion for Judgment, United States of America v. State of Texas,
Brief at 162.
Brief at 168.
Brief at 192.
Texas argued “in addition to its other defenses, defendant has pleaded as a special defense to
plaintiff’s action herein that the State of Texas, under the doctrine of prescription, has established
such title, ownership, and sovereign rights in the area as to preclude the granting of the relief
prayed for by the Federal government.94
Furthermore, Texas asserted, “The United States is estoppel by the acts of the Congress alone or
of the Congress and of the President to deny the rights of Texas to the lands and minerals in
“…The acts upon which the State of Texas relies as creating an estoppel against the United
States are not the acts of officers or agents of the United Sates who lack authority to dispose of
Government property, but are instead the acts of the very branches of the Federal Government
whose constitutional power is to dispose of any property rights which the United States of
America may have. Jones v. United States, 137 U.S. 202 (1890).”96
“At the time Texas entered into the agreement of annexation with the United States, both were
sovereign nations. Under the terms of the agreement the Republic relinquished to the United
States its national sovereignty and ceded to the United States specifically described public
property. The terms of that agreement likewise included certain guarantees, including the
retention by the Republic in its capacity as a new State of “vacant and unappropriated lands lying
within its limits.” The United States accepted the benefits of this international contract –
accepted it by acts of the branch of the Government which has the ultimate power within our
constitutional system to agree on behalf of the United States what property should and what
property should not come into the United States under the agreement. By accepting the cessions
of public property and sovereignty made by the State of Texas in carrying out this agreement, the
United States is precluded from seeking to enlarge the bargain more than one hundred years later
when it appears that Congress might have driven a better bargain than the one which it actually
made in 1845.”97
“The previous argument concerning the part of the continental shelf within the original three-
league Gulfward boundaries of the state of Texas does not directly apply throughout to the part
of the shelf beyond those boundaries. Neither the United States nor Texas made any assertion of
dominion over the shelf beyond the three-league boundary line until recent years.
In 1941 the legislature of Texas passed an act making its Gulfward boundary a line twenty seven
miles from law-water mark. In 1945 (September 28) President Truman issued a Proclamation
declaring that the jurisdiction of the United States extends over the natural resources of the
continental shelf beyond territorial waters to the edge of the shelf. Thereafter, May 23, 1947, the
Brief at 192-193.
Brief at 196.
Brief at 197-198.
Brief at 198-199.
legislature of Texas passed an act extending its territory Gulfward to the edge of the continental
shelf. Thus, the United States internationally, and the State of Texas domestically, have asserted
jurisdiction over all the continental shelf lying beyond the original Gulfward boundary lines of
the Republic of Texas and within its present extensions of those lines.
No question of present day international law concerning these claims is involved in this case.
Neither does plaintiff, for the purpose of this case, question the validity of Texas’ boundary
extensions (Plaintiff’s brief, p. 72). For its intended purposes the Presidential Proclamation is
However, the validity of the Proclamation and its effect in our domestic law do not settle the
problem of the distribution between State and Federal government of ultimate jurisdiction and
ownership over these resources. That is a matter of our federal constitutional law and of
“Even if it be assumed (contrary to what the evidence will show) that the land and minerals in
suit are not owned by Texas and that they are not owned by the United States, but that the United
States has a paramount governmental right to preserve, regulate, and control their exploration
and development. Texas is still free to act in the matter until Congress exercises the power of the
Federal Government in a manner which conflicts with State legislation. [Citation omitted.]
If there is no ownership of the lands and minerals of the marginal belt, then there is no valid
distinction, other than one of degree, between one natural resource and another. The right and
power of the State, in the absence of national legislation, may be exercised as to oil as well as to
fish. No claim is made that Congress has entered the field or attempted to exercise any
paramount powers which may be held that the Federal Government has over these resources.”99
“The Texas legislation attacked by this suit is not challenged on the ground that it offends any
federal constitutional limitation upon state power. Such was the basis of the attack upon the
South Carolina statutes in Toomer v. Witsell. In the absence of such challenge, and since it is not
claimed that the Congress has enacted conflicting legislation, the plaintiff is not entitled to
prevail if it has not proprietary rights in the lands and minerals underlying the marginal belt
within the original boundaries of Texas. Plaintiff has not shown such proprietary interest as a
matter of law, and therefore the motion for judgment should be overruled.”100
“The Court may take judicial notice of the status of international law and the practices of nations
as to marginal sea boundaries and bed and subsoil ownership as it existed in 1836-1845, but
since plaintiff disputes the status of this law and practice as claimed by defendant, it is proper
that evidence be heard to determine the true practices, customs, and usages which comprised
international law of the period. The Court often has gone to the publicists for this information,
Brief at 201-202.
Brief at 220.
Brief at 222.
but the testimony of experts who have devoted their lives to the study of the practice is also
proper. Defendant desired at trial to offer in support of its contentions some of the world’s
leading experts in the field of international law. In Oklahoma v. Texas, 253 U.S. 465, 471
(1920), a controversy as to the ownership of a riverbed in which the status of international law as
of the years 1819, 1828 and 1839 was pertinent, this Court ordered that evidence be taken “…in
respect of the governmental practice on the part of all governments and states concerned at the
time bearing upon the construction and effect of the said treaty.”101
Thus Texas presented a 240 page brief to the U.S. Supreme Court exclusive of memoranda and
appendix. Roscoe Pound wrote of the “Rights involved in United States v. Texas.” Quoting
numerous historical authorities, Pound concluded that “…as an independent nation the Republic
of Texas owned the bed and subsoil and separate estate in the minerals in that portion of the gulf
of Mexico within its boundaries. It had dominion of this property as well as the imperium of a
sovereign nation. The two rights were severable. Its national sovereignty and all governmental
powers attached thereto could be transferred with or without its minerals and subsoil ownership.
One must look to the treaty of agreement by which it transferred its national sovereignty to
determine whether there was also a cession of property rights.
Herein lies a vital distinction between the Texas case and that of United States v. California, 332
U.S. 19 (1947).
California was never an independent sovereignty with both imperium over and dominium in a
public domain of its own. The United States succeeded to both imperium and dominium with
respect to the whole domain of California.”102
“In United States v. California the Court found that the original thirteen States did not separately
acquire the lands beneath their marginal belts before the Union was formed. The Court said,
“Any acquisition, as it were, of the three-mile belt [has] been accomplished by the National
Government.” And no transfer of proprietary rights has been made to those States or to
Quite differently from what the Court found with reference to the original States, the Republic of
Texas did acquire its three-league marginal belt before it entered the Union. It did so in the same
manner as the United States was held to have acquired the marginal belt off the shores of the
original States – by extending national dominion thereover. In addition, Texas established and
maintained fixed boundaries and brought the area within, and subjected it to a body off domestic
law which fixed ownership of the bed, subsoil, and minerals in the Republic.
Brief at 222-223.
Brief by Roscoe Pound at 6, 7.
At annexation, Texas transferred only governmental powers, imperium, over its territory for
federal purposes as granted by the Constitution. The United States acquired no dominum over
lands in Texas except as acquired by cession or condemnation subsequent to annexation.
Texas’ ownership cannot be exercised in such manner as to interfere with any federal
governmental power which exists over the area. To that extent it is a limited and restricted
ownership. The federal powers in national defense, commerce, and international relations are
paramount. As said in the California case, they transcend the rights of a mere property owner.
But they do not extinguish the rights of the property owner. They limit and restrict the owner’s
enjoyment only when necessary in powers as on the Great Lakes, which have been held to be
“open seas” and beneath which far greater areas of submerged lands have been held to be owned
by the United States. The United States may regulate navigation, make international agreements,
and conduct the public defense, without owning the lands.
Wisely, the plaintiff does not contend that ownership of these lands and minerals is an
inseparable attribute of external sovereignty. In this day when world governments are being
planned it is important that dominium is not confused with, inextricably tied to, imperium.
Imagine a day when the governments of the world might join in an effective union. Assume that
all of the nation’s powers of external sovereignty, international relations, and defense were
transferred to a United Nations of the world, this transfer of external sovereignty should not be
held to carry with it any proprietary rights theretofore acquired by the United States in the
marginal belt of the original States and California in the absence of a cession of the property.
Such is the situation which existed between Texas and the United States in 1845. Texas
transferred its external sovereignty and certain enumerated properties which then pertained to its
national defense. It ceded no other property. This is confirmed by a specific reservation of all
“vacant and unappropriated lands lying within its limits.” The subsoil and minerals remained in
the State just as the subsoil and minerals of the California belt would remain in the United States
if it should transfer external sovereignty to a larger federation of States without ceding its rights
of a proprietary nature beneath the marginal sea of California.
The rights are separable, and it was wholly within the power of the Congress of the United States
to make the agreement allowing Texas to retain its marginal sea lands and minerals at the time
national sovereignty was transferred. This is confirmed by a reference in the California decision
concerning the power of Congress to prevent the Attorney General from bringing the California
suit. There the Court said:
“For Article IV., Section 3, Cl. 2 of the Constitution vests in Congress ‘Power to dispose of and
make all needful Rules and Regulations respecting the Territory or other property belonging to
the United States.’ We have said that the constitutional power of Congress in this respect is
without limitation. United States v. San Francisco, 310 U.S. 16 29-30. Thus neither the courts
nor the executive agencies could proceed contrary to an Act of Congress in this congressional
area of national power.”103
Charles Cheney Hyde, a notable international law scholar, prepared a “Memorandum on United
States v. Texas; Inapplicability of the California Case, 332 U.S. 19.”104 He wrote that “in that
case [California] the Court did not in fact undertake to pass upon the meaning of interpretation of
a title acquired by any political entity or State of the Union prior to its entering the Union to
underlying lands of the marginal belt. In the present case, the outstanding factor is the definite
asserting of the title by Texas to lands underlying the sea over the area which it claimed to be its
own, embracing an extent of three marine leagues from low water mark.”105
“The action of Texas when as an independent nation it fixed its seaward boundary at three
marine leagues, although not duplicated by similar action on the part of the thirteen original
States of the United States in their colonial day, was not contrary to international law, where
there was and remains lack of unanimity concerning what should constitute the sea limits of a
territorial sovereign. What stands out is the existing lack of general agreement among interested
Sates concerning an exact geographical test of limits. This was apparent at the Hague Conference
of 1930. It certainly could not be maintained that the three marine league test was arbitrary at the
time when the State of Texas made use of it, or an extension of what the law of nations was
acknowledged to permit. There is abundant evidence expressed both by commentators and
statesmen that States generally enjoyed great latitude in fixing their seaward limits and that
within those limits they felt free to regard subjacent land as their own and, among other things, to
deal with it as property.”106
“It is believed to be reasonable to declare that when Texas entered the Union, it surrendered only
its governmental powers of national sovereignty – not its lands or rights of substance theretofore
acquired by its own use of those powers. These rights of substance that Texas had acquired were
distinct and therefore separable from the paramount governmental powers originally employed in
making the acquisition. In a word, the Texan rights of substance did not pass to the United States
by transfer of those governmental powers of national sovereignty. Again it should be noted these
rights of substance were not ceded to the United States by the annexation agreement. One
searches in vain for a document indicating any general transfer.”107
The Texas brief contained significant other supplemental information further supporting the
conclusion that Texas owned the tidelands.
United States v. Texas
Brief of Roscoe Pound at 9-11.
Brief Appendix, 12.
Hyde Memorandum, 12.
Hyde memorandum, 15.
Hyde Memorandum, 16.
The United States had requested that the Supreme Court grant judgment declaring that the United
States had title to both land and minerals under a portion of the Gulf of Mexico while Texas filed
a motion for a special master to take evidence. The Supreme Court announced its decision on
June 5, 1950.108
Justices Jackson and Clark did not participate in the decision. Justices Reed and Minton
dissented. Justice Frankfurter did not specifically dissent. That left a plurality opinion authored
by Justice Douglas.
After discussing the arguments of the U.S. and Texas, Douglas wrote: “The Court in original
actions, passing as it does on controversies between sovereigns which involve issues of high
public importance, has always been liberal in allowing full development of the facts. [Citations
omitted.] If there were a dispute as to the meaning of documents and the answer was to be found
in diplomatic correspondence, contemporary construction, usage, international law and the like,
introduction of evidence and a full hearing would be essential.
We conclude, however, that no such hearing is required in this case. We are of the view that the
“equal footing” clause of the Joint Resolution admitting Texas to the Union disposes of the
present phase of the controversy.
The “equal footing” clause has long been held to refer to political rights and to sovereignty.
[Citation omitted.] It does not, of course include economic stature or standing. There has never
been equality among the States in that sense. Some States, when they entered the Union, had
within their boundaries tracts of land belonging to the federal government; others were
sovereigns of their soil. Some had special agreements with the federal government governing
property within their borders. [Citations omitted]. Area, location, geology, and latitude have
created great diversity in the economic aspects of the several states. The requirement of equal
footing was designed not to wipe out those diversities but to create parity as respects political
standing and sovereignty.
Yet the “equal footing” clause has long been held to have a direct effect on certain property
rights. Thus the question early arose in controversies between the federal government and the
states as to the ownership of the shores of navigable waters and the soils under them. It was
consistently held that to deny to the states, admitted subsequent to the formation of the Union,
ownership of this property would deny them admission on an equal footing with the original
states, since the original States did not grant these properties to the United States but reserved
them to themselves. [Citations omitted.] The theory of these decisions was aptly summarized by
Mr. Justice Stone speaking for the Court in United States v. Oregon, 295 U.S. 1, 14 as follows:
“Dominion over navigable waters and property in the soil under them are so identified with the
sovereign power of government that a presumption against their separation held in private
United States v. Texas, 339, U.S. 707 (1950).
ownership or transfer of sovereignty itself. [Citation omitted.] For that reason, upon admission of
a State to the Union, the title of the United States to lands underlying navigable waters within the
states passes to it, as incident to the transfer to the States of local sovereignty, and is subject only
to the paramount power of the United States to control such waters for purposes of navigation in
interstate and foreign commerce.”109
“The “equal footing” clause, we hold, works the same way in the converse situation presented by
this case. It negates any implied, special limitation of any of the paramount powers of the United
States in favor of a State. Texas prior to her admission was a Republic. We assume that as a
Republic she had not only full sovereignty over the marginal sea, but ownership of it, of the land
underlying it, and of the riches which it held. In other words, we assume that it had the
dominium and imperium in and over this belt which the United States now claims. When Texas
came into the Union, she ceased to be an independent nation. She then became a sister state on
an “equal footing” with all the other states. That act concededly entailed a relinquishment of
some of her sovereignty. The United States then took her place as respects foreign commerce,
the waging of war, the making of treaties, defense of the shores, and the like. In external affairs
the United States became the sole and exclusive spokesman for the nation. We hold that as an
incident to the transfer of that sovereignty any claim that Texas may have had to the marginal sea
was relinquished to the United States.
We stated the reasons for this in United States v. California Supra, p. 35, as follows:
“The three-mile rule is but a recognition of the necessity that a government next to the sea must
be able to protect itself from dangers incident to its location. It must have powers of dominion
and regulation in the interest of its revenues, its health, and the security of its people from wars
waged on or too near to its coasts. And insofar as the nation asserts its rights under international
law, whatever of value may be discovered in the seas next to its shores and within its protective
belt, will most naturally be appropriated for its use. But whatever any nation does in the open
sea, which detracts from its common usefulness to nations, or which another nation may change
detracts from it, is a question for consideration among nations as such, and not their separate
governmental units. What this government does, or even what states do, anywhere in the ocean,
is a subject upon which the nation may enter into and assume treaty or similar international
obligations. [Citation omitted.] The very oil about which the state and nation were contend might
well become the subject of international dispute and settlement.”110
“And so although dominium and imperium are normally separable and separate, this is an
instance where property interests are so subordinated to the rights of sovereignty as to follow
United States v. Texas at 715-717.
United States v. Texas at 717-718.
It is said that there is no necessity for it – that the sovereignty of the sea can be complete and
unimpaired no matter if Texas owns the oil underlying it. Yet, as pointed out in United States v.
California, once the low-water mark is passed the international domain is reached. Property
rights must then be so subordinated to political rights as in substance to coalesce and unite in the
national in the national sovereign. Today the controversy is over oil. Tomorrow it may be over
some other substance or mineral or perhaps the bed of the ocean itself. If the property, whatever
it may be, lies seaward of low-water marks, its use, disposition, management, and control
involve national interests and national responsibilities. That is the source of national rights in it.
Such is the rationale of the California decision, which we have applied to Louisiana’s case. The
same result must be reached here if “equal footing” with the various states is to be achieved.
Unless any claim or title which the Republic of Texas had to the marginal sea is subordinated to
this full paramount power of the United Sates on admission, there is or may be in practical effect
a subtraction in favor of Texas from the national sovereignty of the United States. Yet neither the
original thirteen states [citation omitted] nor California nor Louisiana enjoy such an advantage.
The “equal footing” clause prevents extension of the sovereignty of a state into a domain of
political and sovereign power of the United States from which the other states have been
excluded, just as it prevents a contraction of sovereignty [citation omitted] which would produce
inequality among the states. For equality of states means that there are not “less or greater, or
different in dignity of power.” [Citation omitted.] There is no need to take evidence to establish
that meaning of “equal footing.”
“Texas in 1941 sought to extend its boundary to a line in the Gulf of Mexico twenty-four marine
miles beyond the three mile limit and asserted ownership of the bed within that area. And in
1947 she put the extended boundary to the outer edge of the continental shelf. The irrelevancy of
these acts to the issue before us has been adequately demonstrated in United States v. Louisiana.
The other contentions of Texas need not be detailed. They have been foreclosed by United States
v. California and United States v. Louisiana.
The motions of Texas for an order to take depositions and for the appointment of a Special
Master are denied.”111
Justices Reed and Minton dissented stating that Texas was a special case. “The California case
points out that it was the United States which had acquired this seacoast area [the three mile belt]
for the nation. Sovereignty over that area passed from Mexico to this country. The Court
commented that similar belts along the shores were not owned by the original seacoast states.
Since something akin to ownership of the similar area along the coasts of the original states was
thought by the Court to have been obtained through an assertion of full dominion by the United
States to this hitherto unclaimed portion of the earth’s surface, it was decided that a similar right
in the California area was obtained by the United States. The contrary is true in the case of
United States v. Texas at 719-720.
Texas. The Court concedes that, prior to the Resolution of Annexation, the United States
recognized Texas ownership of the three-league area claimed by Texas.112
“The Court holds immaterial the fact of Texas’ original ownership of this marginal sea area
because Texas was admitted on an “equal footing” with the other states by the Resolution of
Annexation. [Citation omitted]. The scope of the “equal footing” doctrine, however, has been
thought to embrace only political rights or those rights considered necessary attributes of state
sovereignty. Thus this Court has held in a consistent line of decisions that, since the original
states, as an incident of sovereignty, had ownership and dominion over lands under navigable
waters within their jurisdiction, states subsequently admitted must be accorded equivalent
ownership. [Citations omitted.] But is was an articulated premise of the California decision that
the thirteen original states neither had asserted ownership nor had held dominion over the three
mile zone as an incident of sovereignty.
“Equal footing” has heretofore brought to a state the ownership of river beds, but never before
has that phrase been interpreted to take away from a newly admitted state property that it had
theretofore owned. I see no constitutional requirement that this should be done and I think the
Resolution of Annexation left the marginal sea area in Texas. The Resolution expressly
consented that Texas should retain all “the vacant and unappropriated lands lying within its
limits.” An agreement of this kind is in accord with the holding of this Court that ordinarily lands
may be the subject of compact between a state and the nation. [Citation omitted.] The Court,
however, does not decide whether or not “the vacant and unappropriated lands lying within its
limits” (at the time of annexation) includes the land under the marginal sea. I think that it does
include those lands. [Citation omitted.] At least we should permit evidence of its meaning.”113
“Instead of deciding this question of cession, the Court relies upon the need for the United States
to control the area seaward of low water because of its international responsibilities. It reasons
that full dominion over the resources follows this paramount responsibility, and it refers to the
California discussion of the point. [Citation omitted.] But the argument based upon international
responsibilities prevailed in the California case because the marginal sea area was staked out by
the United Sates. The argument cannot reasonably be extended to Texas without a holding that
Texas ceded that area to the United States.
The necessity for the United States to defend the land and to handle international affairs is not
enough to transfer property rights in the marginal sea from Texas to the United States. Federal
sovereignty is paramount within national boundaries, but federal ownership depends on taking
possession, as the California case holds; on consent, as in the case of places for federal use; or on
purchase as in the case of Alaska or the territory of Louisiana. The needs of defense and foreign
affairs alone cannot transfer ownership of an ocean bed from a state to the federal government
any more than they could transfer iron ore under uplands from state to federal ownership.
United States v. Texas, Reed, J. dissenting at 721.
Reed dissent at 721-722.
National responsibility is no greater in respect to the marginal sea than it is toward every other
particle of American territory. In my view, Texas owned the marginal area by virtue of its
original proprietorship; it has not been shown to my satisfaction that it lost it by the terms of the
Resolution of annexation.
I would deny the United States motion for judgment.”114
Justice Frankfurter in dissent wrote; “Time has not made the reasoning of the United States v.
California, 332 U.S. 19, more persuasive but the issue there decided is no longer open for me. It
is relevant, however, to note that in rejecting California’s claim of ownership in the off shore oil
the Court carefully abstained from recognizing such claim of ownership by the United States.
This was emphasized when the Court struck out the proprietary claim of the United States from
the terms of the decree proposed by the United States in the California case.
I must leave it to those who deem the reasoning of that decision right to define its scope and
apply it, particularly to the historically very different situation of Texas. As it is made clear in the
opinion of Mr. Justice Reed, the submerged lands now in controversy were part of the domain of
Texas when she was on her own. The Court now decides that when Texas entered the Union she
lost what she had and the United States acquired it. How that shift came to pass remains for me a
The Political Environment
Attempts to secure the Tidelands by quitclaim were vetoed by President Truman. The language
of his veto message was that the submerged lands should be retained for the general welfare of
the American people and S.J.R. 20 would “…constitute a gift to the coastal states…”116
Truman later wrote that he never gave any consideration to signing the bill.117 This stand became
significant in the Presidential election of 1952 and pushed Texas into support of Republican
After the 1952 election, House Resolution 2948 was introduced to quitclaim the Tidelands.
When it reached the Senate, there was an intense debate. On May 23, 1953, President
Eisenhower signed the Submerged Lands Act. According to Eisenhower, the bill recognizing the
states’ claims “…is in keeping with the basic principles of honesty and fair play.”118 Additional
legislation, the Outer Continental Shelf Act, was signed by the President on June 25, 1953.
On September 26, 1953, Alabama filed suit asserting that the Submerged Lands Act deprived its
citizens of their equitable interest in oil revenues claimed by the United States. Rhode Island
Reed, dissent at 722-723.
Frankfurter, dissent at 723-724.
Truman Veto Message, May 29, 1952.
Harry S. Truman, “Memoirs by Harry S. Truman.” Vol. II, “Years Trial and Hope” (New York, 1956), 483.
Presidential Statement, May 22, 1953.
supported the suit further asserting that the Submerged Lands Act was unconstitutional because
the submerged lands were never considered federal property and thus Congress could not
transfer them to the states.
On March 15, 1954, by a vote of six to two the United States Supreme Court denied Alabama
and Rhode Island permission to sue. The Court held that Congressional authority to dispose of
public lands “…is without limitation.”119 Justice Douglas and Black dissented, stating that
powerful political forces from a few states were being used to wipe out the paramount rights
doctrine asserted in previous decisions.120 In May, 1955, the Justice Department sued Louisiana,
which like Texas, asserted a three league boundary, to establish the state’s boundary at three
miles. The case was expanded on November 6, 1957 to include Texas. There was political
confusion within Eisenhower’s administration, with the President making public statements in
support of a three league boundary while the Justice Department was asserting a three mile
On May 31, 1960, the U.S. Supreme court, in an eighty one page opinion, held six to one that
Texas and Florida have a three league boundary in the Gulf of Mexico.121 The boundaries of the
other gulf states, Louisiana, Mississippi, and Alabama, were set at three miles.122 A subsequent
pronouncement by the U.S. Supreme Court on December 4, 1967 stated that the boundary should
be measured from the natural coastline as it existed in 1845.123
In March, 1969, the Supreme Court altered its 1967 decision, holding that where the coastline
had eroded, the three leagues would begin at the present coastline.124 However, the reverse was
not true for areas where the coastline had moved seaward. In these areas the Court held that the
1845 location of the coastline would be the beginning point for the three leagues.125
The Seaweed Rebellion
The earliest battles of the Seaweed Rebellion focused on whether the state or federal government
had control over the offshore lands. With the rise of environmentalism, the conflict focused on
the competing interest of environmental protection and energy development. Subsequent battles
focused on offshore leasing sales or moratoria. The first President Bush restricted offshore
The 1969 Santa Barbara oil spill became a focus of environmental concern about offshore
petroleum production. Legislation followed, most notably, the Coastal Zone Management Act,126
Alabama v. Texas, 347 U.S. 272 at 276 (1954).
Douglas, dissent at 283.
United States v. Louisiana, 364 U.S. 502 (1960).
United States v. Louisiana, 363 U.S. 121 at 121-129 (1960).
United States v. Louisiana, 389. U.S. 155, at 159-161 (1967).
United States v. Louisiana, 394 U.S. 11, 23-24 (1969).
United States v. Louisiana, 394 U.S. 11 at 25-26 (1969).
16 U.S.C. Secs. 1451-1464.
and the Marine Sanctuaries Act.127 However, the Regan administration moved to emphasize
offshore production with a five year leasing program from 1982 to 1987.128
Florida, Alaska, California, Oregon, and Washington sued to challenge the leasing program. The
District of Columbia Court of Appeals applied an arbitrary and capricious standard to reviewing
the leasing decisions of the Secretary of Interior.129 The Court upheld the decision of the
Secretary of Interior.
A related conflict involved Section 307(c)(1) of the Coastal Zone Management Act that stated:
[Federal activity]… “Directly affecting” the state’s coastal area must proceed “…in a manner
which is to the maximum extent practicable, consistent with the approved state’s management
programs.”130 A challenge to the Secretary of Interior’s leasing policies was decided by the
United States Supreme Court in 1984. The Court, five to four, determined that federal activities
must occur within the coastal zone to directly affect this area.131
The Bush administration attempted to end federal-state conflict by announcing in 1990 that all
new lease activities off California and Southwest Florida would be canceled and no new leasing
would occur before 2000.132
Additionally, the Department of Interior would consider the buyback of existing leases off
southwest Florida and would involve Florida in this process. Air quality issues and improved
spill responses would be considered. The possibility of states’ participation in decision making
and revenue sharing would be considered. There would be a better consideration of
environmental risks in the decision making process. The President stated: “although I have today
taken these strong steps to protect our environment, I continue to believe that there are
significant offshore areas where we can and must go forward with resource development.”133
Section 5 of the OCSLA allowed the Secretary of the Interior to conduct a hearing to determine
if activity on a lease “would probably cause serious harm or damage to life (including fish and
other aquatic life), to property or any mineral (in areas leased or not leased), to the national
security or defense, or to the marine, coastal, or human environment.” If this threat will not
diminish to an acceptable extent over time, and “the advantages of cancellation outweigh the
16 U.S.C. Secs. 1431-1445.
Proposed Changes in Offshore Leasing Program, 46 Fed. Reg. 39, 226 (July 31, 1981).
California v. Watt, 712 F.2d 584 (D.C. Cir. 1983).
16 U.S.C. Sec. 1456.
Secretary of Interior v. California, 464 U.S. 312 (1984).
Outer continental Shelf: OCS Task Force Recommends Delay in Drilling off California, Florida, More Studies,
Mitigation, 21 Env. Rep. (BNA) 289 (June 1, 1990).
Review of Offshore Oil and Gas Programs: Hearings before the Subcommittee on Water, Power, and Offshore
energy Resources of the House Committee on Interior and Insular Affairs, 102 Congress 310-321 (1991).
advantages of continuing such lease or permit [in] force, “then the lease may be cancelled with
appropriate compensation to the leasee.134
A political controversy developed between the Bush administration and the state of Florida over
the cancellation of the leases of Florida. Ultimately Congress imposed a moratorium on new
leasing.135 President Clinton promised to “stop the crusade for new offshore drilling.”136 By
Executive Order, President Clinton extended the Bush moratorium until 2012.137 Litigation
involving regulation and cancellation of leases resulted in a decision by the U.S. Supreme Court
that there was a material breach of contract and that Mobil Oil and Marathon Oil were entitled to
The key clause in the leases was that the leases were subject to “all other statutes and
regulations.”139 The Supreme Court stated that the phrase did not include future legislation but
only existing statutes and regulations at the time of lease execution.140
When George W. Bush became President, he attempted to balance offshore development and
state revenue sharing. Chevron sued the federal government for delay in granting Clean Air Act
permits, asserting breach of contract and taking of property. Ultimately this litigation was settled
out of court with payments by the federal government to Chevron, Conoco, and Murphy
Exploration and Production. President Bush proposed buying back leases off the Florida
Panhandle and in the Florida Everglades.141
Ultimately the Coastal states were not successful in litigating claims related to the Seaweed
Rebellion, but did succeed in the political arena by obtaining a moratorium on offshore
development. The balance between environmental concerns and energy needs will ultimately be
fixed in the political process.
The Modern Oceans
The United States has generally argued for freedom of the seas.142 Canada asserts that the
Northwest Passage is subject to Canadian sovereignty. While the European Union has generally
43 U.S.C. Sec. 1334(a)(2)(c).
Act of Nov. 5, 1990, Pub. L. no. 101-512, 104 Stat. 1936 (1990).
Governor Bill Clinton and Senator Al Gore, Putting People First (1992).
President Clinton Extends for 10 years, until 2012, Moritoria on Oil and Gas Drilling, N.Y. Times, June 13, 1998,
Mobil Oil Exploration and Producing S.E., Inc. v. United States, 530 U.S. 604 (2000).
Mobil Oil v. U.S. at 604.
Mobil v. U.S. at 615.
Bumiller and Hulse, U.S. May Buy Back Florida Oil Rights, N.Y. TIMES, May 30, 2002, at A1.
Rebecca Dube, Tiff Over Northwest Passage Heats Up As Ice Melts, USA Today, April 4, 2006.
asserted that the Northwest Passage is international waters, Russia supports Canada’s claims.143
Russia asserts claims to waters around their lands.
In making an international claim, the U.S. asserts both a geographic argument and a functional
argument.144 The Northwest Passage joins two oceans and has longstanding international use.
Canada has drawn straight lines asserting that the waters are internal. The “straight baselines”
argument comes from a 1951 International Court of Justice decision in the Norwegian Fisheries
The 1951 case involved the coastal islands off Norway. The Court drew lines outside of these
islands, making the waters between them and the mainland internal waters. But the real future
arguments will not be over passages but minerals.
Numerous past claims have been made to parts of Antarctica. This continent is currently covered
by a series of agreements known as the Antarctic Treaty System. It is quite possible that
Antarctica contains significant petroleum reserves. Some developing nations have made a
“common heritage of mankind” argument regarding Antarctica.146 The preamble of the 1959
Antarctic Treaty “[recognizes] that it is in the interest of all mankind that Antarctica shall
continue forever to be used exclusively for peaceful purposes and shall not become the scene or
object of international discord.”147 However, if in competition for resources, the Antarctic Treaty
collapsed, the entire continent could easily be up for grabs.
The 1982 United Nations Convention on the Law of the Sea contained procedures with binding
decisions. The United States is not a party to this treaty. Without U.S. support the long-term
survival of this treaty is in question. Without treaties in place, it will be a race for a nation to
become “Admiral of the Ocean Sea.” The United States cannot assume that it would win such a
On August 2, 2007, the Russian flag was planted on the seabed under the North Pole.148 The
Arctic Ocean likely contains extensive petroleum reserves. Doubtless, new technologies and new
mineral discoveries in the world’s oceans will continue.
See, A. Perrin, Crashing Through the Ice; Legal Control of the Northwest passage or Who Shall Be ‘Emperor of
the North,’ 13 Tul. Mar. L. J. 139 (1988).
See, Donald McRae, Arctic Sovereignty: Loss By Dereliction?, in Canada’s changing North 427, 437 (William C.
Wonders rev. ed., 2003.
Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 5 (Dec. 19).
See, Rayimah Hussain, The Antarctic: Common Heritage of Mankind?, in Joe Verhoeven, THE ANTARCTIC
ENVIRONMENT AND INTERNATIONAL LAW (Joe Verhoeven et al. eds. (1992).
The Antarctic Treaty, December 1, 1959, 12. U.S.T. 794, 402 U.N.T.S. 71.
Voice of America News: Russia claiming the North Pole, August 21, 2007. U.S. Fed. News.
Unless the world’s nations want costly wars for natural resources and a race like colonial times
to become “Admiral of the Ocean Sea,” the only way to proceed is through international treaty
and binding recognized decisions. The original Antarctic Treaty does not address mineral
development. All treaties should address mineral and territorial claims to allow peaceful and
beneficial development of resources for us all.
In January, 2009, Russia asserted claims to large sections of the Arctic Ocean. In a planning
document that was only partially released, the content stated: “It cannot be ruled out that the
battle for raw materials will be waged with military means.”149 Furthermore, it was reported that
a government-controlled newspaper Rossiyskaya Gazeta was stating that “the fight for the arctic
will be the initial spark for a new division of the world.”150 Arthur Chilingarov, who was
involved in planting a Russian flag on the seabed of the North Pole, stated: “If these rights are
not recognized, Russia will withdraw from the U.N. Convention on the Law of the Sea.”151
Greenland, Denmark, and all the nations surrounding the North Pole are asserting claims,
although not as aggressively as Russia.
It is said that Howard Hughes’ favorite movie was “Ice Station Zebra.” Released in 1968, the
movie was loosely based on a 1963 novel by Alistair Machean. It involved a Russian-American
confrontation near the North Pole. Perhaps reality will mirror art.
Russia Unveils Aggressive Arctic Plans,” Speigle Online, Jan. 29, 2009,
http://www.spiegel.de/international/world, last visited April 21, 2009.