United States v. Louisiana (363 U.S. 1)/Opinion of the Court

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United States v. Louisiana by John Marshall Harlan II
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United States Supreme Court

363 U.S. 1

UNITED STATES,  v.  LOUISIANA, ET AL.

No. 10, Original.  Argued: October 12-15, 1959. --- Decided: May 31, 1960.

MR. JUSTICE HARLAN delivered the opinion of the Court.

The United States, invoking our original jurisdiction under Art. III, § 2, of the Constitution, brought this suit against the States of Louisiana, Texas, Mississippi, Alabama, and Florida, seeking a declaration that it is entitled to exclusive possession of, and full dominion and power over, the lands, minerals, and other natural resources underlying the waters of the Gulf of Mexico more than three geographical miles seaward from the coast of each State and extending to the edge of the Continental Shelf. [1] The complaint also asks that the States be enjoined from interfering with the rights of the United States in that area, and that they be required to account for all sums of money derived by them therefrom since June 5, 1950. [2] The case is now before us on the motions of the United States for judgment on the pleadings and for dismissal of Alabama's cross bill seeking to establish its rights to such submerged lands and resources within three marine leagues of its coast.

The controversy is another phase of the more than 20 years' dispute between the coastal States and the Federal Government over their respective rights to exploit the oil and other natural resources of offshore submerged lands. In 1947 this Court held that, as against California, the United States possessed paramount rights in such lands underlying the Pacific Ocean seaward of the low-water mark on the coast of California and outside of inland waters. United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889; 332 U.S. 804, 68 S.Ct., 20, 92 L.Ed. 382. And on June 5, 1950, the Court, following the principles announced in the California case, made like holdings with respect to submerged lands in the Gulf of Mexico similarly lying off the coasts of Louisiana and Texas, and directed both States to account to the United States for all sums derived from natural resources in those areas after that date. United States v. State of Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216; 340 U.S. 899, 71 S.Ct. 275, 95 L.Ed. 651; United States v. State of Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221;340 U.S. 900, 71 S.Ct. 276, 95 L.Ed. 652. [3]

On May 22, 1953, Congress, following earlier repeated unsuccessful attempts at legislation dealing with state and federal rights in submerged lands, [4] passed the Submerged Lands Act, 67 Stat. 29, 43 U.S.C. §§ 1301-1315, 43 U.S.C.A. §§ 1301 1315. By that Act the United States relinquished to the coastal States all of its rights in such lands within certain geographical limits, and confirmed its own rights therein beyond those limits. The Act was sustained in State of Alabama v. State of Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689, as a constitutional exercise of Congress' power to dispose of federal property, Const.Art. IV, § 3, cl. 2. Since the Act concededly did not impair the validity of the California, Louisiana, and Texas cases, which are admittedly applicable to all coastal States, this case draws in question only the geographic extent to which the statute ceded to the States the federal rights established by those decisions.

The purposes of the Submerged Lands Act are described in its title as follows:

'To confirm and establish the titles of the States to lands beneath navigable waters within State boundaries and to the natural resources within such lands and waters, to provide for the use and control of said lands and resources, and to confirm the jurisdiction and control of the United States over the natural resources of the seabed of the Continental Shelf seaward of State boundaries.'

To effectuate these purposes the Act, in pertinent part-

1. relinquishes to the States the entire interest of the United States in all lands beneath navigable waters within state boundaries (§ 3, 43 U.S.C. § 1311, 43 U.S.C.A. § 1311); [5]

2. defines that area in terms of state boundaries 'as they existed at the time (a) State became a member of the Union, or as heretofore approved by the Congress,' not extending, however, seaward from the coast of any State more than three marine leagues [6] in the Gulf of Mexico or more than three geographical miles in the Atlantic and Pacific Oceans (§ 2, 43 U.S.C. § 1301, 43 U.S.C.A. § 1301); [7]

3. confirms to each State a seaward boundary of three geographical miles, without 'questioning or in any manner prejudicing the existence of any State's seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress' (§ 4, 43 U.S.C. § 1312, 43 U.S.C.A. § 1312); [8] and

4. For purposes of commerce, navigation, national defense, and international affairs, reserves to the United States all constitutional powers of regulation and control over the areas within which the proprietary interests of the States are recognized (§ 6(a), 43 U.S.C. § 1314, 43 U.S.C.A. § 1314); [9] and retains in the United States all rights in submerged lands lying beyond those areas to the seaward limits of the Continental Shelf (§ 9, 43 U.S.C. § 1302, 43 U.S.C.A. § 1302). [10]

The United States concedes that the statute grants to each of the defendant States submerged land rights in the Gulf of Mexico to the extent of three geographical miles, but contends that none of them is entitled to anything more. The States, conceding that three leagues is the limit of the statute's grant in the Gulf contend that each of them is entitled to that much. The wide-ranging arguments of the parties, reflecting no doubt the magnitude of the economic interests at stake, [11] can be reduced to the following basic contentions:

The Government starts with the premise that the Act grants submerged land rights to a distance of more than three miles only to the extent that a Gulf State can show, in accordance with § 2(b) of the Act, either that it had a legally established seaward boundary in excess of three miles at the time of its admission to the Union, or that such a boundary was thereafter approved for it by Congress prior to the passage of the Submerged Lands Act. It is contended that the Act did not purport to determine, fix, or change the boundary of any State, but left it to the courts to ascertain whether a particular State had a seaward boundary meeting either of these requirements. The Government then urges, as to any State relying on its original seaward boundary, that the Act contemplates as the measure of the grant a boundary which existed subsequent to a State's admission to the Union, and not one which existed only prior to admission-in other words, a boundary carrying the legal consequences of the event of admission. It reasons from this that since a State's seaward boundary cannot be greater than the national maritime boundary, and since the national boundary was at all relevant times never greater than three miles, no State could have had a seaward boundary in excess of three miles, regardless of what it may have claimed prior to admission. Further, the Government undertakes to show that, irrespective of the extent of the national maritime boundary, none of these States ever had a valid seaward boundary in excess of three miles, even prior to admission, and that no such boundary was thereafter approved by Congress for any State.

The States, on the other hand, make several alternative arguments. At one extreme, they contend that the Submerged Lands Act ipso facto makes a three-league grant to all the Gulf States, or at least that the Act by its terms establishes the seaward boundary of some States, notably Texas and Florida, at three leagues. Alternatively, they argue that if the extent of such state boundaries 'at the time' of admission was left to judicial determination, then the controlling inquiry is what seaward boundary each State had just prior to admission. If, however, the Act contemplates a boundary as fixed by the event of admission, each State contends that Congress fixed for it a three-league Gulf boundary, and that whatever may have been the extent of the national maritime boundary at the time is an irrelevant factor. Florida further contends that when it was readmitted to the Union in 1868, Congress approved for it a three-league Gulf boundary. And finally the States argue that if the national boundary is in any way relevant, it has at all material times in fact been at three leagues in the Gulf of Mexico.

Both sides have presented in support of their respective positions a massive array of historical documents, of which we take judicial notice, and substantially agree that all the issues tendered can properly be disposed of on the basis of the pleadings and such documents.

In this opinion we consider the issues arising in common between the Government and all the defendant States, and the particular claims of Texas, Louisiana, Mississippi, and Alabama, all of which depend upon their original admission boundaries. The particular claims of Florida, which involve primarily its readmission boundary, are considered in a separate opinion. 363 U.S. 121, 80 S.Ct. 1026.

The Common Issues.

A. The Statute On Its Face.

The States' contention that the Act ipso facto grants them submerged land rights of three leagues in the Gulf may be shortly answered. The terms of the statute require rejection of such a construction. Rather the measure of the grant in excess of three miles is made to depend entirely upon the location of a State's original or later Congressionally approved maritime boundary, subject only to the three-league limitation of the grant.

We turn next to the question whether, as the States contend, the first of the two alternative requirements of § 2-a boundary which 'existed at the time such State became a member of the Union'-is satisfied merely by a showing a preadmission boundary, or whether, as the Government claims, that requirement contemplates only a boundary that carries the legal consequences of the event of admission. While it is manifest that the second requirement of § 2-a boundary which was 'heretofore approved by the Congress'-must take into account the effect of Congressional action, it is not clear from the face of the statute that the same is true of the first requirement-a boundary 'as it existed at the time (a) State became a member of the Union.'

The Government argues that in construing the first requirement of § 2 the effect of Congressional action cannot be ignored because to do so would be to measure the boundary prior to the time a State became a member of the Union, and 'at the time' cannot mean 'prior to the time.' However, it might be contended with equal force that to take account of the effect of Congressional action would be to measure the boundary after the time the State became a member of the Union, and 'at the time' cannot mean 'after the time.' Indeed, if 'at the time' were to be taken in a perfectly literal sense, it could refer only to the timeless instant before which the consequences of not being a State would obtain, and after which the consequences of statehood would follow, leaving unanswered the question whether the effect of Congressional action was to be considered or not. In short, if the term is to be given content it must be read as referring either to some time before or after the instant of admission, or to both times.

As an aid to construction of 'at the time' in § 2, the Government points to § 4, the last sentence of which states:

'Nothing in this section is to be construed as questioning or in any manner prejudicing the existence of any State's seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.' (Emphasis supplied.)

It is urged that the disjunctive use of the terms 'prior to' and 'at the time' shows that the latter must have been used to refer to the time after admission, since the phraseology would otherwise be redundant, and that such meaning should also be attributed to the same term in § 2, thereby including the effect of Congressional action. But, as has already been indicated, 'at the time' inherently can also be taken as referring to the preadmission period, thereby excluding the effect of such action. And on that basis there would be no redundancy in the phrase 'prior to or at the time' if 'at the time' meant immediately before the instant of admission and 'prior to' referred to times substantially prior to admission; yet this would nonetheless exclude the effect of Congressional action. So far as the statute itself is concerned, the Government's argument is thus inconclusive.

Nor do the States' arguments upon the face of the statute illumine the meaning of 'at the time' as used in § 2. They contend that the meaning of § 2 is explained or clarified by the last sentence of § 4. According to them, a boundary 'existed at the time (a) State became a member of the Union' (§ 2) if 'it was so provided by its constitution or laws prior to or at the time such State became a member of the Union * * *.' § 4. Under this view, whatever the meaning of 'at the time,' the existence of a state constitutional or statutory three-league provision prior to admission would conclusively establish the boundary contemplated by the Act, irrespective of the character of Congressional action upon admission. However, this provision appears not in the definitional or granting sections of the statute (§§ 2 or 3), but in § 4, the purpose of which is to approve and confirm the boundaries of all States at three miles, and to negative any prejudice which might thereby result to claims in excess of three miles. It thus does not define the grant, but at most describes the claims protected from prejudice by § 4 in terms of their most likely nature. A fair reading of the section does not point to the conclusion that claims of this nature were deemed to be self-proving.

Finally, there is no indication on the face of the statute whether the Executive policy of the United States on the extent of territorial waters is a relevant circumstance in ascertaining the location of state seaward boundaries for purposes of the Act.

Because the statute on its face is inconclusive as to these issues, we turn to the legislative history.

B. The Legislative History.

This Court early held that the 13 original States, by virtue of the sovereignty acquired through revolution against the Crown, owned the lands beneath navigable inland waters within their territorial boundaries, and that each subsequently admitted State acquired similar rights as an inseparable attribute of the equal sovereignty guaranteed to it upon admission. Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565. [12] It was assumed by many, and not without reason, [13] that the same rule would be applied to lands beneath navigable waters of the marginal sea, that is, beyond low-water mark and the outer limit of inland waters. However, beginning in the 1930's, the Federal Government, while conceding the validity of the Pollard rule as to inland waters, disputed its applicability to submerged lands beyond that limit, and claimed ownership of those lands for the United States. [14] The controversy centered primarily on the ownership of the oil-rich submerged lands off the coast of California. The State maintained that its original constitution, adopted in 1849 before it was admitted to the Union, established a seaward boundary three English miles from the coast, [15] that this boundary was ratified by the Act of Congress admitting it to the Union, and that therefore under the Pollard rule, it was entitled to all submerged lands lying within three English miles of its coast. This Court refused so to apply Pollard, and held in the California case and the subsequent Louisiana and Texas cases, supra, that paramount rights in the marginal sea are an attribute of national rather than state sovereignty, irrespective of the location of state seaward boundaries.

Meanwhile an extended series of attempts was underway to secure Congressional legislation vesting in the States the ownership of those lands which would be theirs under an application of the Pollard rule to the marginal sea. [16] It was strongly urged, both before and after the California decision that because the States had for many years relied on the applicability of the Pollard rule to the marginal sea, it was just and equitable that they be definitively given the rights which follow from such an application of the rule, and the California, Louisiana, and Texas cases were severely criticized for not having so applied it. [17]

Thus virtually every 'quitclaim' measure introduced between 1945 and 1953, when the Submerged Lands Act was ultimately enacted, framed the grant in terms of 'lands beneath navigable waters within State boundaries.' This framework was employed because the sponsors understood this Court to have established, prior to the California decision, a rule of state ownership itself defined in terms of state territorial boundaries, whether located at or below low-water mark. [18] Since, however, none of the cases which had applied that rule involved lands below low-water mark, and since the California and subsequent Louisiana and Texas cases adopted for such lands a rule which does not depend upon state boundaries, this Court has never had occasion to consider the precise nature and method of determining state territorial boundaries in the open sea, such as would circumscribe the extent of state ownership of offshore lands under an application of the Pollard rule. Because Congress, in the exercise of its constitutional power to dispose of federal property, has chosen so to frame its grant, we are now called on to resolve such questions in light of the Act's history and purposes.

From the very outset, the sponsors of 'quitclaim' legislation believed that all States were entitled to at least three miles of coastal submerged lands. [19] The earliest bills confirmed to the States all lands beneath navigable waters within their boundaries, and defined 'lands beneath navigable waters' to include at least all lands lying within three geographical miles of the coast of each State. [20] However, they contained no definition of'boundaries,' and it was apparently assumed that the boundaries of all States extended at least three miles. [21] Opponents of such legislation quickly pointed out that while California based its three-mile claim on an expressly defined maritime boundary, many, if not most, of the coastal States lacked such a boundary, [22] and that therefore, such States could not avail themselves of the Pollard rule, the applicability of which is restricted to areas within the actual territorial boundaries of the State, even assuming the rule to be capable of application beyond low-water mark. [23] Proponents of the legislation alleged it to be defective in that it granted only those lands beneath navigable waters which lay within state boundaries, and that this Court in the California case, while not expressly passing on the question, had cast doubt on whether any of the original States ever had a boundary beyond its coast. [24] As a result, a new section was added, substantially similar to the second and third sentences of § 4 of the present Act (see note 8, 363 U.S. 10, 80 S.Ct. 968), which permitted each State which had not already done so to extend its boundary seaward three miles and approved all such extensions theretofore or thereafter made, without prejudice to any State's claim that its boundary extended beyond three miles. [25]

It is not entirely clear on what theory Congress thus concluded that each State owned the submerged lands within three miles of its coast, irrespective of the existence of an expressly defined seaward boundary to that distance. It was substantially agreed that the 13 original Colonies owned the lands within three miles of their coasts because of their sovereignty and the alleged international custom which permitted a nation to extend its territorial jurisdiction that far. [26] Some proponents of the legislation seem to have concluded that therefore, not only did the original States retain such rights after formation of the Union, but that subsequently admitted States acquired similar rights within three miles, irrespective of the location of their boundaries, by the operation of the equal-footing clause. [27] It was also suggested that state ownership within three miles came about by operation of federal law because of the Federal Government's assumed adherence to the three-mile limit of territorial waters. [28] While some speakers maintained that these factors in effect gave each State a three-mile maritime boundary, [29] others eschewed technical reliance on the matter of boundaries and thought it sufficient that the Pollard rule had always been thought to confer ownership on the State of lands within three miles of the coast and that the States ought to be restored to the position they believed they had formerly occupied. [30] And there is some suggestion that since many States, under the Congressional view of Pollard, had indisputable claims to three miles of submerged lands, the remainder ought to be treated on a parity whether or not their claims were technically justified. [31] The upshot of all of these differing views was the confirmation of each coastal State's seaward boundary at three geographical miles.

Whatever may have been the uncertainty attending the relevance of state boundaries with respect to rights in submerged lands within three miles of the coast, we find a clear understanding by Congress that the question of rights beyond three miles turned on the existence of an expressly defined state boundary beyond three miles. Congress was aware that several States claimed such a boundary. Texas throughout repeatedly asserted its claim that when an independent republic its statutes established a three-league maritime boundary, and that the United States ratified that boundary when Texas was admitted to the Union and permitted Texas to retain its own public lands. [32] Florida repeatedly asserted its claim that subsequent to its secession at the time of the Civil War, it framed a constitution which established a three-league boundary along its Gulf coast, and that such boundary was ratified when Congress in 1868, 15 Stat. 73, approved the State's constitution and readmitted it to the Union. [33] Louisiana asserted that the Act of Congress admitting it to the Union in 1812, 2 Stat. 701, fixed for it a three-league maritime boundary by virtue of the provision which includes within the State 'all islands within three leagues of the coast.' [34] And it was suggested that Mississippi and Alabama might claim boundaries six leagues in the Gulf because of similar provisions in the Acts admitting them to the Union. [35]

It was recognized that if the legal existence of such boundaries could be established, they would clearly entitle the respective States to submerged land rights to that distance under an application of the Pollard rule to the marginal sea. Hence, while a three-mile boundary was expressly confirmed for all coastal States, the right of the Gulf States to prove boundaries in excess of three miles was preserved. This treatment of the matter was carried into all the numerous 'quitclaim' bills by language similar to that found in § 4 of the present Act, confirming all coastal state boundaries at three miles and negating any prejudice to boundary claims in excess of that. [36] Repeated expressions of the Act's sponsors make it absolutely clear that no boundary in excess of three miles was fixed for any State, but that a State would have to establish the existence of such a boundary in judicial proceedings. [37] The many individual expressions of views as to the location of particular state boundaries-notably statements that the effect of the Act would be to give Texas and Florida three leagues of submerged land rights [38]-while undoubtedly representing the sincere beliefs of the speakers, cannot serve to relieve this Court from making an independent judicial inquiry and adjudication on the subject, as contemplated by Congress.

The earlier 'quitclaim' bills defined the grant in terms of presently existing boundaries, [39] since such boundaries would have circumscribed the lands owned by the States under an application of Pollard to the marginal sea. However, the sponsors of these measures soon recognized that present boundaries could be ascertained only by reference to historic events. The claims advanced by the Gulf States during consideration of earlier bills were identical to those subsequently asserted. [40] The theory of those claims, as we have noted, depended either, as in the cases of Texas and Florida, upon a constitutional or statutory provision allegedly ratified by Congressional acquiescence, or, as in the cases of Louisiana, Mississippi, and Alabama, upon express Congressional action. Indeed, it could hardly have been contended that Congressional action surrounding the event of admission was not relevant to the determination of present boundaries. Some suggestions were made, however, that States might by their own action have effectively extended, or be able to extend, their boundaries subsequent to admission. [41] To exclude the possibility that States might be able to establish present boundaries based on extravagant unilateral extensions, such as those recently made by Texas and Louisiana, [42] subsequent drafts of the bill introduced the twofold test of the present Act-boundaries which existed at the time of admission and boundaries heretofore approved by Congress. [43] It is apparent that the purpose of the change was not to alter the basic theory of the grant, but to assure that the determination of boundaries would be made in accordance with that theory-that the States should be 'restored' to the ownership of submerged lands within their present boundaries, determined, however, by the historic action taken with respect to them jointly by Congress and the State. [44] It was such action that the framers of this legislation conceived to fix the States' boundaries against subsequent change without their consent and therefore to confer upon them the long-standing equities which the measure was intended to recognize. [45]

Somewhat later, the last sentence of the present Act's § 4 was added, for the specific purpose of assuring that the boundary claims of Texas and Florida would be preserved. [46] The first part of the sentence (see note 8, 363 U.S. 10, 80 S.Ct. 968), intended to refer to Texas alone, protects the State's claim to a three-league boundary as 'provided by its constitution or laws prior to or at the time such State became a member of the Union.' That claim, however, was asserted to rest not only on its statute but also on the action of Congress in admitting it to the Union. [47] If any doubt could remain that the event of admission is a vital circumstance in ascertaining the location of boundaries which existed 'at the time' of admission within the meaning of the Submerged Lands Act, it is conclusively dispelled by repeated statements of its proponents to that effect. [48]

We conclude, therefore, that the States' contention that preadmission boundaries, standing alone, suffice to meet the requirements of the statute is not tenable.

3. The Question of Executive Policy Respecting the 'Three-Mile Limit.'

During consideration of the various 'quitclaim' bills between 1945 and 1953, the suggestion that international questions might be raised by the bill constantly recurred. It was asserted that the United States might be embarrassed in its dealings with other nations, first, by permitting States to exercise rights in submerged lands beyond three miles, [49] and, second, by recognizing that the boundaries of some States might extend beyond three miles from the coast. [50] The first objection was laid to rest by the testimony of Jack B. Tate, Deputy Legal Adviser to the State Department. Mr. Tate stated that exploitation of submerged lands involved a jurisdiction of a very special and limited character, and he assured the Committee that assertion of such a jurisdiction beyond three miles would not conflict with international law or the traditional United States position on the extent of territorial waters. He concluded that since the United States had already asserted exclusive rights in the Continental Shelf as against the world, the question to what extent those rights were to be exercised by the Federal Government and to what extent by the States was one of wholly domestic concern within the power of Congress to resolve. [51]

The second objection, however-that to recognize by the Act the possible existence of some state maritime boundaries beyond three miles would embarrass this country in its dealings with other nations-was persistently pressed by the State Department and by opponents of the bill. The bill's supporters consistently took the position that under the Pollard rule as they understood it, the extent of a State's submerged land rights in excess of three miles depended entirely upon the location of its maritime boundary as fixed by historical events, [52] and that to the extent a State's boundary had been so fixed beyond three miles, it constituted an exception to this country's assumed adherence to the three-mile limit. The admission of Texas and the readmission of Florida were repeatedly asserted as instances where Congress had made exceptions to the three-mile policy, purportedly based on the shallowness of waters in the Gulf and the alleged Spanish custom of claiming three leagues of territorial waters. [53]

The State Department, confronted with this argument, tenaciously maintained that it had never recognized any boundaries in excess of three miles. [54] It insisted that by virtue of federal supremacy in the field of foreign relations, the territorial claims of the States could not exceed those of the Nation, and that, therefore, if the bill recognized the effectiveness of the relied-on historical events to fix boundaries beyond three miles despite the State Department's refusal so to recognize them, the bill would violate this country's consistent foreign policy. The Government now urges in this case a closely similar contention. It says that the Submerged Lands Act did not establish any formula for the ascertainment of state boundaries but left them to be judicially determined, and that because of federal supremacy in the field of foreign relations, this Court must hold that the Executive policy of claiming no more than three miles of territorial waters-allegedly in force at all relevant times, and evidenced by the State Department's consistent refusal to recognize boundaries in excess of three miles-worked a decisive limitation upon the extent of all state maritime boundaries for purposes of this Act. [55]

We agree that the Submerged Lands Act does not contain any formula to be followed in the judicial ascertainment of state boundaries, and that therefore, we must determine, as an independent matter, whether boundaries, for purposes of the Act, are to be taken as fixed by historical events such as those pointed to in the Congressional hearings and debates, or whether they must be regarded as limited by Executive policy on the extent of territorial waters, as contended by the Government. However, in light of the purely domestic purposes of the Act, we see no irreconcilable conflict between the Executive policy relied on by the Government and the historical events claimed to have fixed seaward boundaries for some States in excess of three miles. We think that the Government's contentions on this score rest on an oversimplification of the problem.

A land boundary between two States is an easily understood concept. It marks the place where the full sovereignty of one State ends and that of the other begins. The concept of a boundary in the sea, however, is a more elusive one. The high seas, as distinguished from inland waters, are generally conceded by modern nations to be subject to the exclusive sovereignty of no single nation. [56] It is recognized, however, that a nation may extend its national authority into the adjacent sea to a limited distance for various purposes. For hundreds of years, nations have asserted the right to fish, to control smuggling, and to enforce sanitary measures within varying distances from their seacoasts. [57] Early in this country's history, the modern notion had begun to develop that a country is entitled to full territorial jurisdiction over a belt of waters adjoining its coast. [58] However, even this jurisdiction is limited by the right of foreign vessels to innocent passage. [59] The extent to which a nation can extend its power into the sea for any purpose is subject to the consent of other nations, and assertions of jurisdiction to different distances may be recognized for different purposes. [60] In a manner of speaking, a nation which purports to exercise any rights to a given distance in the sea may be said to have a maritime boundary at that distance. But such a boundary, even if it delimits territorial waters, confers rights more limited than a land boundary. It is only in a very special sense, therefore, that the foreign policy of this country respecting the limit of territorial waters results in the establishment of a 'national boundary.' The power to admit new States resides in Congress. The President, on the other hand, is the constitutional representative of the United States in its dealings with foreign nations. From the former springs the power to establish state boundaries; from the latter comes the power to determine how far this country will claim territorial rights in the marginal sea as against other nations. Any such determination is, of course, binding on the States. The exercise of Congress' power to admit new States, while it may have international consequences, also entails consequences as between Nation and State. We need not decide whether action by Congress fixing a State's territorial boundary more than three miles beyond its coast constitutes an overriding determination that the State, and therefore this country, are to claim that much territory against foreign nations. It is sufficient for present purposes to note that there is no question of Congress' power to fix state land and water boundaries as a domestic matter. Such a boundary, fully effective as between Nation and State, undoubtedly circumscribes the extent of navigable inland waters and underlying lands owned by the State under the Pollard rule. Were that rule applicable also to the marginal sea-the premise on which Congress proceeded in enacting the Submerged Lands Act-it is clear that such a boundary would be similarly effective to circumscribe the extent of submerged lands beyond low-water mark, and within the limits of the Continental Shelf, owned by the State. For, as the Government readily concedes, the right to exercise jurisdiction and control over the seabed and subsoil of the Continental Shelf is not internationally restricted by the limit of territorial waters.

We conclude that, consonant with the purpose of Congress to grant to the States subject to the three-league limitation, the lands they would have owned had the Pollard rule been held applicable to the marginal sea, a state territorial boundary beyond three miles is established for purposes of the Submerged Lands Act by Congressional action so fixing it, irrespective of the limit of territorial waters. We turn now to the task of ascertaining what boundary was was so fixed for each of the defendant States.

The Particular Claims of Texas.

Texas, the only one of the defendant States which had the status of an independent nation immediately prior to its admission, contends that it had a three-league maritime boundary which 'existed at the time (it) became a member of the Union' in 1845. Whether that is so for the purposes of the Submerged Lands Act depends upon a proper construction of the Congressional action admitting the State to the Union.

Texas declared its independence from Mexico on March 2, 1836, 1 Laws, Republic of Texas, 3-7, Vernon's Ann.St.Const. and on December 19, 1836, the Texan Congress passed an Act to define its boundaries, which were described in part as

'beginning at the mouth of the Sabine river, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande, thence up the principal stream of said river. * * *' Id., 133. (Emphasis added.) See diagram at 363 U.S. 65, 80 S.Ct. 998. [61]

In March 1837 this country recognized the Republic of Texas. [62] On April 25, 1838, the United States entered into a convention with the Republic to establish a boundary between the two countries and to provide for a survey of part of it. [63] On April 12, 1844, President Tyler concluded a Treaty of Annexation with the Republic, but on June 8, 1844, the Senate refused to retify it. [64] On March 1, 1845, President Tyler signed a Joint Resolution of Congress for the annexation of Texas, which provided:

'That Congress doth consent that the territory properly included within, and rightfully belonging to the Republic of Texas, may be erected into a new State, to be called the State of Texas * * *. Said State to be formed, subject to the adjustment by this government of all questions of boundary that may arise with other governments * * *.' [65] (Emphasis added.)

Pursuant to this Resolution, the people of Texas adopted a constitution, Const. 1845, Vernon's Ann.St., which was submitted to Congress, and by Joint Resolution of December 29, 1845, Texas was admitted to the Union in accordance with the terms of the previous Joint Resolution. [66] The 1836 Texas Boundary Act remained in force up to the time of admission, and the State Constitution expressly continued in force from that time forward all laws of the Republic not repugnant to the Federal or State Constitution or the Joint Resolution of Annexation. [67]

The Government, while conceding that Texas continuously asserted by statute a three-league seaward boundary, contends that at no time before, during, or after admission did the United States or any other country recognize the validity of that boundary. It follows, therefore, the Government says, that since Texas upon entering the Union became subject to the foreign policy of the United States with respect to the 'three-mile limit,' the State's seaward boundary became immediately and automatically fixed at three miles. Texas, on the other hand, argues that it effectively established, and that the United States repeatedly recognized, the State's three-league boundary before, during, and after admission, and that therefore such a boundary existed 'at the time' of its admission within the meaning of the Submerged Lands Act. For reasons already discussed, 363 U.S. at pages 24-36, 80 S.Ct. at pages 976-982, we consider that the only relevant inquiry is what boundary was fixed for the State of Texas by virtue of the Congressional action admitting it to the Union in accordance with the terms of the Joint Resolution of March 1, 1845. This inquiry first takes us back to some earlier history.

By the Treaty of Paris, signed April 30, 1803, [68] France ceded to the United States the Louisiana Territory. The extent of the territory thus conveyed was left uncertain, the description in the Treaty referring only to a previous treaty by which France had acquired the territory from Spain, which in turn described the area only as 'the colony or province of Louisiana.' [69] It was asserted by some that the territory acquired did not stop at the Sabine River the present boundary between the States of Louisiana and Texas-but extended westward to the Rio Grande so as to include Texas. [70] However, by the Treaty of February 22, 1819, between the United States and Spain, the boundary line between the two countries was established at the Sabine. [71] Those who had believed that the Louisiana Territory extended west of the Sabine decried this Treaty as a breach of faith by the United States in violation of the covenant in the 1803 Treaty which required the inhabitants of all the Louisiana Territory to be incorporated as soon as possible into the Union. [72] Subsequently, the United States attempted unsuccessfully on several occasions to acquire the territory west of the Sabine by purchase. [73]

Meanwhile, Mexico had revolted from Spain, had been recognized by this country in 1822, and had proclaimed a federal constitution in 1824. Texas was made part of the compound province of Coahuila-Texas, with the indication that it would eventually be given a separate constitution as a sovereign state. After a series of difficulties with the central government, however, Texas in 1836 proclaimed its own independence from Mexico. It immediately sent diplomatic representatives to the United States to negotiate for annexation, but nothing was consummated at that time. [74] Shortly thereafter, it promulgated the 1836 boundary statute referred to above.

It was against this background that President Tyler negotiated and sent to the Senate the 1844 Treaty for the annexation of Texas. That document provided:

'The Republic of Texas * * * cedes to the United States all its territories, to be held by them in full property and sovereignty * * *.' [75]

One of the objections made to the Treaty on the floor of the Senate was that it purported to cede to the United States all the territory claimed by Texas under her 1836 Boundary Act, to large parts of which Texas allegedly had no title, those parts assertedly having always been under the domination and control of Spain and Mexico. [76] This objection was countered by several proponents of the Treaty who insisted that since it contained no delineation of boundaries and since the Republic of Texas was referred to by a general designation, the clause 'all its territories' ceded only that which properly and rightfully belonged to Texas, its Boundary Act notwithstanding. [77]

The proponents pointed also to a letter of instructions written by Secretary of State Calhoun to the United States Charge d'Affaires in Mexico a week after the Treaty was signed, which enjoined the latter, in making the Treaty known to Mexico, 'to assure the Mexican Government that it is his (the President's) desire to settle all questions between the two countries which may grow out of this treaty, or any other cause, on the most liberal and satisfactory terms, including that of boundary * * *. (The United States) has taken every precaution to make the terms of the treaty as little objectionable to Mexico as possible; and, among others, has left the boundary of Texas without specification, so that what the line of boundary should be might be an open question, to be fairly and fully discussed and settled according to the rights of each, and the mutual interest and security of the two countries.' [78]

Despite these controversial aspects of the Treaty, it is quite apparent that its supporters desired to press Texas' boundary claims to the utmost degree possible. President Tyler, in response to the Senate's request, transmitted to it a map showing the western and southwestern boundaries of Texas, and according generally with the Texas Boundary Act. [79] Senator Walker of Mississippi, while insisting that the Treaty ceded 'only * * * the country embraced within its (Texas') lawful boundaries,' asserted that in fact her lawful boundary extended to the Rio Grande, that it had extended that far when she was ceded away by the United States in 1819, that the United States had acquiesced in those boundaries when it recognized Texas in 1837, and that Mexico had never protested the Convention of 1838 which allegedly validated that boundary. [80] Senator Breese of Illinois, while assuring the Treaty's opponents that the boundary was left open to future determination, avowed that the United States had acknowledged the Texas boundaries as asserted in her 1836 statute, and that he was in favor of the recovery not only of the old province of Texas as it existed in 1803 and 1819, but also 'for as much more as the 'republic' of Texas can lawfully claim.' [81] Senators Woodbury of New Hampshire and Buchanan of Pennsylvania, while expressing doubt about the validity of the Texas Boundary Act to the extent that it claimed portions of New Mexico, thought it was valid so far as it pressed beyond the Nueces to the Rio Grande and ought to be maintained. [82]

After the failure of the Treaty, which would have annexed Texas as a territory of the United States, several proposals were introduced in the next session of Congress for the annexation of Texas by a Joint Resolution admitting it immediately as a State. [83] The doubts which had been raised in 1844 as to the validity of certain Texan pretensions to territory on her western and southwestern frontiers were reiterated during consideration of the various Resolutions, and reference was made to the fact that the rejected Treaty had been assailed as purporting to embrace such territory. [84] In 1844, supporters of the Treaty had considered the general designation 'all its territories' as ceding only territory which rightfully, properly, or lawfully belonged to Texas, and as leaving to the Executive the duty of settling the extent of that territory by amicable negotiation. [85] The two clauses of the 1845 Annexation Resolution (363 U.S. 37, 80 S.Ct. 983), appear, against this background, to be an express formulation of precisely the same thing. The first makes it clear that the grant is of initially undefined scope, governed by the truism that only 'the territory properly included within, and rightfully belonging to the Republic of Texas' is ceded. The second expressly contemplates future negotiation to settle the exact extent of such territory, by making it 'subject to the adjustment by this government of all questions of boundary that may arise with other governments.' In short, it is clear that the 'properly' and 'rightfully' clause was intended neither as a legislative determination that the entire area claimed by Texas was legitimately hers, nor to serve, independently of the 'adjustment' clause, as a self-operating standard for measuring Texas' boundaries. Rather, the precise fixation of the new State's boundaries was left to future negotiations with Mexico.

The circumstances surrounding the Resolution's passage make it clear that this was the understanding of Congress. Congressional attention was focused primarily on the great political questions attending annexation-primarily the extent to which slavery would be permitted in the new territory and the possibility that annexation would embroil this country with Mexico and the matter of boundary received little consideration except as it was related to the larger issues. Public agitation over annexation had become so great that some bills had proposed annexation virtually in the abstract, with all details to be worked out later. [86] Although the Resolution as ultimately passed did settle the details of certain matters-notably slavery, the Texan debt, and the mode of annexation-the manifest purport of it and all the many other annexation bills introduced was to postpone the fixing of boundaries for the sake of achieving immediate annexation, and no apparent importance was attached to the particular verbal formula used to achieve such postponement. [87] The general tenor of opposition to annexation changed from a fear that the cession covered too much to criticisms of the indefinite treatment of boundary and concern over whether Texas really owned as much as some supporters asserted. [88] It is true that isolated statements were made which seem to indicate that the speaker thought the Resolutions would admit Texas with the boundary defined in her 1836 boundary statute, subject to possible subsequent readjustment. [89] However, read in context, these statements may have meant no more than that the United States, in its negotiations with Mexico, would attempt to sustain the full extent of Texas' declared boundaries, rather than that those boundaries were in fact proper. Be that as it may, in view of the overwhelming evidence of Congressional understanding and of the express language of the Annexation Resolution as ultimately passed, the conclusion is inescapable that Texas at least as to its land area, was admitted with undefined boundaries subject to later settlement.

While this conclusion appears unavoidable as regards Texas' land boundaries, a question does exist as to whether it applies also to the State's seaward boundary. For we are unable to find in the Congressional debates either on the 1844 Treaty or the 1845 Annexation Resolution a single instance of significant advertence to the problem of seaward boundaries. Furthermore, a series of other events manifests a total lack of concern with the problem. Prior to Texan independence, the United States had entered into successive treaties with Spain and Mexico, [90] which provided that

'The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabin, in the sea, continuing north, along the western bank of that river * * *.' (Emphasis added.) Just after Texas had proclaimed its independence from Mexico, the two countries, on May 14, 1836, concluded 'Articles of Agreement and Solemn Compact,' acknowledging Texan independence and setting its boundary as follows:

'The line shall commence at the estuary or mouth of the Rio Grande, on the western bank thereof, and shall pursue the same bank up the said river * * *.' [91] (Emphasis added.)

Thereafter a minister was sent to the United States to seek recognition and broach the subject of annexation. With respect to the latter, he was instructed on November 18, 1836:

'As regards the boundaries of Texas * * * (w)e claim and consider that we have possession to the Rio Bravo del Norte. Taking this as the basis, the boundary of Texas would be as follows. Beginning at the mouth of said River on the Gulf of Mexico, thence up the middle thereof * * *.' [92] (Emphasis added.)

Yet a month later, on December 19, 1836, the Texan Congress passed the Boundary Act which inexplicably, so far as we can find, provided that the boundary should run along the Gulf of Mexico at three leagues from land. [93] Quite in contrast, in the subsequent Convention of 1838 to establish the boundary between the United States and Texas, Texas reaffirmed the 1819 and 1828 Treaties with Spain and Mexico regarding that boundary and agreed to the running and marking of

'that portion of the said boundary which extends from the mouth of the Sabine, where that river enters the Gulph of Mexico, to the Red river.' [94] (Emphasis added.)

Again, as previously mentioned (note 79, 363 U.S. 41, 80 S.Ct. 985), during its consideration of the unratified Treaty of April 12, 1844, the Senate requested President Tyler to transmit any information he possessed concerning the southern, southwestern, and western boundaries of Texas. On April 26, 1844, he sent a map and a memoir by its compiler. The memoir flagrantly misquoted the 1836 Boundary Act by describing the Texas boundary as "Beginning at the mouth of the Rio Grande, thence up the principal stream of said river * * *." [95]

The foregoing circumstances make it abundantly plain that at the time Texas was admitted to the Union, its seaward boundary, though expressly claimed at three leagues in the 1836 Texas Boundary Act, had not been the subject of any specific concern in the train of events leading to annexation.

Given this state of affairs, we must initially dispose of an argument made by Texas. The State urges, in effect, that whether or not its maritime boundary was actually considered by the Congress or the Executive during the course of the annexation proceedings, it was incumbent upon the United States to protest or reject in some manner Texas' claim in this regard, and that failure to do so constituted in law a validation or ratification of that boundary claim upon admission. Whatever the merit of this proposition may be in the abstract, the controlling factor for purposes of this case must be the terms of the Joint Resolution of Annexation. There is, indeed, a strong argument that the 'properly,' 'rightfully,' and 'adjustment' clauses of that Resolution should be read as applying only to the land boundaries disputed with Mexico, which give rise to those qualifications, and that the Resolution was meant to validate any boundary asserted by Texas without protest. However, in light of the fact that the language employed in the Resolution is of general applicability, we should hesitate to limit its effect by reading into it such an additional unexpressed test respecting the extent of Texas' boundaries. We think that its language must be taken as applying to Texas' maritime boundary as well as to its land boundary.

On this basis an argument of the Government must now be met. It is contended that since Texas was admitted to the Union with its maritime boundary not yet settled, United States foreign policy on the extent of territorial waters, to which Texas was admittedly subject from the moment of admission, automatically upon admission operated to fix its seaward boundary at three miles. This contention must be rejected. As we have noted, the boundaries contemplated by the Submerged Lands Act are those fixed by virtue of Congressional power to admit new States and to define the extent of their territory, not by virtue of the Executive power to determine this country's obligations via-a -vis foreign nations. 363 U.S. at pages 30-36, 80 S.Ct. at pages 979-982. It may indeed be that the Executive, in the exercise of its power, can limit the enjoyment of certain incidents of a Congressionally conferred boundary, but it does not fix that boundary. If, as in the case of Texas, Congress employs an uncertain standard in fixing a State's boundaries, we must nevertheless endeavor to apply that standard to the historical events surrounding admission.

We are brought back, then, to a twofold inquiry: First, whether the three-league maritime boundary asserted by the Republic of Texas embraced an area which was 'properly included within, and rightfully belonging to' the Republic. Second, whether such a boundary was ever fixed for the State of Texas pursuant to the power reserved by Congress to adjust 'all questions of boundary that may arise with other governments.' As we have observed, it is evident that the first clause, independently of the second, was not intended to operate as a self-executing standard for determining the disputed western and southwestern boundaries of Texas. To attempt to apply that clause as fixing the extent of Texas' maritime boundary, immediately upon admission to the Union, no less than in so fixing its land boundaries, would be illusory at best. The parties devote considerable discussion to the validity or invalidity of the asserted three-league maritime boundary under international law. It is true that the propriety of a nation's seaward boundary must be viewed in the context of its obligations vis-a -vis the family of nations. But surely the Joint Resolution of Annexation could not have been meant to import such an elusive inquiry into the determination of Texas' maritime boundary, especially when that question was never even considered and when the Resolution was expressly drawn to leave undefined the land boundaries which did receive consideration. And we are unable to say that Congress might have deemed the three-league maritime boundary 'proper' or 'rightful' in some other sense. It is necessary, therefore, to look to other events to ascertain where the Texan maritime boundary was fixed pursuant to the Joint Resolution of Annexation.

Congress' failure to carry into the Annexation Resolution the boundaries fixed by the 1836 Texas Boundary Act did not, of course, foreclose the possibility that the State's boundary might ultimately be fixed in accordance with that statute. It is significant in this regard to note the opinions ventured in Congress on the probable settlement of the boundary with Mexico which would occur subsequent to annexation. One group asserted that the Texan claims to the Rio Grande, particularly the portion which encompassed New Mexico, could not possibly be maintained. [96] But such remarks were made primarily by opponents of annexation and were intended as warnings against assuming that enough land would be included in the cession to pay the Texan debt or to form free States. Much more significant than opinions as to where the boundary might ultimately be fixed are observations made regarding the basis on which the boundary question might be pressed against Mexico. Supporters and opponents alike acknowledged that the United States would probably negotiate on the basis of the Texan boundaries as declared in her own boundary statute, even though some parts of that boundary might not be maintainable. Some thought this was so because those boundaries were in fact her proper and rightful boundaries. [97] Others thought it was so because the United States, having acquiesced in the Boundary Act after receiving notice of it, was bound, upon admitting Texas to the Union, to maintain those claims on her behalf. [98] Whatever the reasons given, it is clear that Congress, although it purposely refused to settle the question, anticipated that the Texas Boundary Act should and would be insisted on to the greatest degree possible in negotiations with Mexico.

This prediction was borne out by subsequent events. After the Annexation Resolution had been passed the transmitted to Texas for its assent, the Mexican army threatened to cross the Rio Grande and invade Texas. On June 15, 1845, President Polk wrote an informal and confidential letter to the United States Charge d'Affairs in Texas which indicated that Polk intended to repel such an invasion and to maintain the Texan claim at least to the lower portion of the Rio Grande:

'In the contingency * * * that a Mexican army should cross the Rio Grande * * * then in my judgment, -the public necessity for our interposition-will be such, that we should not stand-quietly by-and permit-an invading foreign enemy-either to occupy or devastate any portion of the Texian territory. Of course I would maintain the Texan title to the extent which she claims it to be, and not permit an invading enemy-to occupy a foot of the soil East of the Rio Grande.' Andrew Donelson Papers (Library of Congress), Vol. 10, folios 2068-2070.

Nine days before, Polk had manifested a similar intention in a letter to Sam Houston, former President of the Republic of Texas and an influential spokesman for annexation:

'You may have no apprehensions in regard to your boundary. Texas once a part of the Union and we will maintain all your rights of territory and will not suffer them to be sacrificed.' Polk Papers (Library of Congress) (1845), Vol. 84.

The attitude of the Executive at this time toward the Texan boundary is made even more explicit by an account of an interview between the United States Charge d'Affaires in Texas and Sam Houston, written by the former to his superior, the Secretary of State:

'I stated at large the general policy of the United States as justifying no doubt of the tenacity with which they would maintain not only the present claim of Texas, but reenforce it with the preexisting one derived from France in 1803 * * *

'I brought also to his view the fact that this latter feature of the proposals did not interfere with the right of Texas to define her limits as she claimed them, in her statutes-that the specification of the Rio Grande as the western boundary would be proper enough as shewing the extent to which the United States would maintain her claim as far as it could be done without manifest injustice to Mexico, and to the portion of the inhabitants of Mexico that had never yet acknowledged the jurisdiction of Texas-that practically the United States would take the place of Texas, and would be obligated to do all, in this respect, that Texas could do, were she to remain a separate nation.' [99]

After Texas consented to annexation and Congress had finally admitted her to statehood, the Mexican army crossed the Rio Grande and declared war upon the United States. On May 11, 1846, President Polk called on Congress to declare war against Mexico. He said in part:

'Texas, by the final action of our Congress, had become an integral part of our Union. The Congress of Texas, by its act of December 19, 1836, had declared the Rio del Norte to be the boundary of that republic. Its jurisdiction had been extended and exercised beyond the Nueces. The country between that river and the Del Norte had been represented in the congress and in the convention of Texas; had thus taken part in the act of annexation itself; and is now included within one of our congressional districts. Our own Congress had, moreover, with great unanimity, by the act approved December 31, 1845, recognized the country beyond the Nueces as a part of our territory, by including it within our own revenue system; and a revenue officer, to reside within that district, has been appointed, by and with the advice and consent of the Senate. It became, therefore, of urgent necessity to provide for the defence of that portion of our country.' H.R.Exec.Doc. No. 60, 30th Cong., 1st Sess. 4, 7.

In a later message to Congress on December 8, 1846, Polk manifested the same disposition, H.R.Exec.Doc. No. 4, 29th Cong., 2d Sess. 13-14. And on December 7, 1847, he explained that the United States had rejected a treaty proposal by Mexico because

'It required the United States to dismember Texas, by surrendering to Mexico that part of the territory of that State lying between the Nueces and the Rio Grande, included within her limits by her laws when she was an independent republic, and when she was annexed to the United States and admitted by Congress as one of the States of our Union.' H.R.Exec.Doc. No. 8, 30th Cong., 1st Sess. 9.

However, there is absolutely nothing to indicate that the Executive, any more than the Congress, was interested in, or was at all aware of any problem presented by, the seaward boundary of Texas claimed in its 1836 Boundary Act. The Government urges, by way of explanation, that the United States had, by this time, firmly established a policy of claiming no more than three miles of territorial waters. But the Executive's responsibility for fixing the Texan boundary derived from a delegation of Congressional power to admit new States, not from the Executive's own power to fix the extent of territorial waters. As we have already pointed out, the two powers can operate independently, and only the first is determinative in this case. To the extent it may be argued that the Executive would naturally take account of its own policy toward territorial waters in fixing the Congressionally mandated boundary, the data presented to us are utterly devoid of any suggestion that such was the case. On the contrary, it is evident that the overwhelming concern of the President and his subordinates was to maintain to the greatest extent possible the land boundaries claimed by Texas and disputed with Mexico, as anticipated by Congress. The settlement of that matter remained for future events, to which we now turn.

On April 15, 1847, Nicholas P. Trist was appointed Commissioner to Mexico to negotiate a peace treaty. Among his instructions was a project of the proposed treaty, which provided:

'The boundary line between the two Republics shall commence in the Gulf of Mexico three leagues from land opposite the mouth of the Rio Grande, from thence up the middle of that river * * *.' 5 Miller, Treaties and Other International Acts of the United States of America (1937), 265. (Emphasis added.)

This language was incorporated verbatim into Article V of the Treaty of Guadalupe Hidalgo as finally signed on February 2, 1848, 9 Stat. 922, which fixed the boundary between the United States and Mexico from the Gulf of Mexico to the Pacific coast. [100] While there was considerable disagreement in the negotiations over the various land boundaries, the proposals of both parties never departed from the three-league provision. See 5 Miller, op. cit. supra, at 270, 288, 289, 315, 317, 325.

Tirst stated in his notes that one object of instructions given to his predecessor, substantially identical in relevant part to those given him, was to get Mexico to agree to a boundary which

'would throw within the territory of the United States the country lying east of the Rio Grande. Or, as said object stands in said instructions, specifically stated & expressed, it was the object of prevailing upon Mexico 'to agree that the line shall be established along the boundary defined by the act of Congress of Texas, approved December 19, 1836, to wit: beginning at 'the mouth of the Rio Grande; thence up the principal stream of said river * * *.'" [101]

While this misquotation of the Texas Boundary Act again demonstrates total insensitivity to any problem of a seaward boundary, the passage does indicate that the United States was attempting to follow the Texas statute in negotiating the boundary. [102] More important for the purposes of this case are the circumstances that the three-league provision was made an express part of the Treaty of Guadalupe-Hidalgo, that such boundary was reaffirmed five years later in the Gadsden Treaty of December 30, 1853 [103] and subsequently in a long line of international conventions, [104] and that it has never been repudiated.

The Treaty unquestionably established the Rio Grande from New Mexico to the Gulf as the land boundary not only of the United States but also of Texas, since the Executive, acting pursuant to the power given by Congress to 'adjust' Texas' boundaries in dealings with other nations, pressed that boundary against Mexico on the theory that it embraced territory rightfully belonging to the State of Texas. There is nothing to indicate that the extension of that boundary three leagues into the Gulf, pursuant to the very same Boundary Act, was treated on any different basis. The portion of the boundary extending into the Gulf, like the rest of the line, was intended to separate the territory of the two countries, and to recognize that the maritime territory of Texas extended three leagues seaward.

Whether the Treaty be deemed to constitute an exercise of the power to adjust the boundaries left unsettled by the 1845 Joint Resolution of Annexation, or a post hoc recognition of a seaward boundary which was actually fixed for Texas upon its admission in 1845, or a fixation of boundaries which related back to the time of admission, is of no moment. Although the Submerged Lands Act requires that a State's boundary in excess of three miles must have existed 'at the time' of its admission, that phrase was intended, in substance, to define a State's present boundaries by reference to the events surrounding its admission. As such, it clearly includes a boundary which was fixed pursuant to a Congressional mandate establishing the terms of the State's admission, even though the final execution of that mandate occurred a short time subsequent to admission.

The Government contends that the Treaty of Guadalupe Hidalgo is of no significance in this case because the line drawn three leagues out to sea was not meant to separate territory of the two countries, but only to separate their rights to exercise certain types of 'extraterritorial' jurisdiction with respect to customs and smuggling. We believe the conclusion is clear that what the line, denominated a 'boundary' in the Treaty itself, separates is territory of the respective countries. No reference to 'extraterritorial' jurisdiction is made in the Treaty, and no such concept can be gleaned from the context of the negotiations. Being based on the three-league provision of the 1836 Texas Boundary Act, which itself denotes a territorial boundary, the obvious and common-sense meaning of the analogous treaty provision is that it separates the maritime territory of the United States and Mexico.

The Government relies on certain diplomatic correspondence as evidencing a subsequent construction of the Treaty contrary to this conclusion. In 1848, when Great Britain protested the three-league provision of the Treaty, both the United States and Mexico replied that the Treaty defined rights only as between the two countries and was not intended to impair the rights of any other nation in the marginal sea. [105] In 1875, Secretary of State Hamilton Fish made a similar explanation to Lord Derby of England, but added a new contention that the boundary provision was 'probably' suggested by the Acts of Congress permitting revenue officials to board vessels bound for the United States within four leagues of the coast. [106] And in 1936, after Mexico had asserted a three-league belt of territorial water along its entire coast, the United States, in denying that the Treaty gave Mexico such a right, adopted both rationales relied on in 1875, and in addition contended that the boundary provision did recognize the territory of the two countries as extending three leagues from the coast, but only in the 'one area' adjacent to the international boundary. [107] It seems evident from the shifting and uncertain grounds upon which these pronouncements relied that they should be taken as reflecting no more than after-the-fact attempts to limit the effect of a provision which patently purported to establish a three-league territorial boundary, so as to bring it into accord with this country's international obligations. Undoubtedly the Executive has the right to limit the effect to be accorded a treaty provision in its dealings with other countries. But where, as here, that Treaty touches upon relationships between the Nation and a State created pursuant to a Congressional mandate, the original purport of the Treaty must control, and the dealings of the Executive with other nations cannot affect the State's rights in any way as a domestic matter.

We conclude, therefore, that pursuant to the Annexation Resolution of 1845, Texas' maritime boundary was established at three leagues from its coast for domestic purposes. Of course, we intimate no view on the effectiveness of this boundary as against other nations. Accordingly, Texas is entitled to a grant of three leagues from her coast under the Submerged Lands Act.

Louisiana's claims, like those of Texas, are based on the contention that it had a three-league maritime boundary which existed "at the time" it was admitted to the Union, and must be judged by the same standards. The Act of Congress admitting the State to the Union in 1812 #fn107a [1] described the new State's boundaries as follows:

"beginning at the mouth of the river Sabine; thence, by a line to be drawn along the middle of said river, including all islands to the thirty-second degree of latitude; thence, due north, to the northernmost part of the thirty-third degree of north latitude; thence, along the said parallel of latitude, to the river Mississippi; thence, down the said river, to the river Iberville; and from thence, along the middle of the said river, and lakes Maurepas and Ponchartrain, to the gulf of Mexico; thence, bounded by the said gulf, to the place of beginning, including all islands within three leagues of the coast...." (Emphasis added.)

Louisiana claims that the concluding clause "including all islands within three leagues of the coast" should be read to mean that Congress fixed as the State's seaward boundary a line three leagues from its coast, and that such a reading is supported both by the State's preadmission history and by subsequent events. The Government, on the other hand, insists that the phrase includes only the islands themselves lying within three leagues of the coast, and not all water within that distance as well. [108]

The language of the Act itself appears clearly to support the Government's position. The boundary line is drawn down the middle of the river Iberville 'to the gulf of Mexico,' not into it for any distance. The State is thence to be bounded 'by the said gulf,' not by a line located three leagues out in the Gulf, 'to the place of beginning,' which is described as 'at the mouth of the river Sabine,' not somewhere beyond the mouth in the Gulf. (Emphasis added.) And while 'all islands' within three leagues of the coast were to be included, there is no suggestion that all waters within three leagues were to be embraced as well. In short, the language of the Act evidently contemplated no territorial sea whatever.

Similar language was employed in the Treaty of Paris of September 3, 1783, by which Great Britain recognized the independence of the United States. [109] After describing the boundary of the United States from the mouth of the St. Croix River in the Bay of Fundy to the mouth of the St. Mary's River between Georgia and Florida, the parties added: 'comprehending all islands within twenty leagues of any part of the shores of the United States * * *.' In the light of Jefferson's observation, only 10 years later, that national claims to control of the sea beyond approximately 20 miles from the coast had not therefore been generally recognized among maritime powers; [110] his accompanying proposal that a three-mile limit should be placed upon the extent of territorial waters; [111] and subsequent American and British policy in this regard, see note 54, supra, it is hardly conceivable that this provision of the Treaty was intended to establish United States territorial jurisdiction over all waters lying within 20 leagues (60 miles) of the shore. [112] No reason appears for reading the Louisiana statute differently. The conclusion that language claiming all islands within a certain distance of the coast is not meant to claim all the marginal sea to that distance is further confirmed by the Act defining the boundaries of Georgia, [113] which claims three miles of marginal sea but all islands within 20 leagues of the coast. That Act provides:

'along the middle of (the St. Mary's) river to the Atlantic Ocean, and extending therein three English miles from low-water mark; thence running in a northeasterly direction and following the direction of the Atlantic coast to a point opposite the mouth, or inlet, of said Savannah River; and from thence to the mouth or inlet of said Savannah River, to the place of beginning; including all the lands, waters, islands, and jurisdictional rights within said limits, and also all the islands within 20 marine leagues of the seacoast.'

Nothing in the case of Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138, tends toward a contrary construction. The Court there held that an Act of Congress designating as an Indian reservation 'the body of lands known as Annette Islands' included the intervening and surrounding waters and submerged lands, which were inland waters admittedly under the control of the United States, whether actually part of the reservation or not. The Court, construing the statute in light of the Indians' historic use of these waters as fishing grounds, merely concluded that Congress intended to include in the area reserved the waters and water bed, as well as the islands, referring to both 'as a single body of lands.' Id., 248 U.S. 89, 39 S.Ct. 42. The construction here contended for by Louisiana would, in contrast, sweep within the State's jurisdiction waters and submerged lands which bear no proximate relation to any islands, and which would otherwise be part of the high seas.

Louisiana also contends, relying on United States v. State of Texas, 162 U.S. 1, 16 S.Ct. 725, 40 L.Ed. 867; State of Louisiana v. State of Mississippi, 202 U.S. 1, 26 S.Ct. 408, 50 L.Ed. 913, that this Court has already determined that its boundary includes three leagues of marginal sea. The Texas case, however, involved only the question whether Greer County, in the northwest part of the State, was properly a part of Texas. And even if that case had effectively established a three-league maritime boundary for Texas, which quite evidently it did not, that would not establish a similar boundary for Louisiana.

The Mississippi case involved only the issue of the boundary between Louisiana and Mississippi. Louisiana relies on the holding of the Court that because the eastern boundary of Louisiana was a water boundary along the middle of the river Iberville, extending to the Gulf, it went on to include a deep-water sailing channel in the Gulf adjacent to Mississippi. It also relies on a rough map included in the Court's opinion showing a line drawn all the way around the State's coast at some distance in the Gulf. There is, however, no indication whatever that the line so indicated bore any relation to the three-league provision in the Louisiana Act of Admission. Furthermore, if there could be any doubt that only the portion of the water boundary adjacent to Mississippi was considered by the Court, it is dispelled by the Court's statement that

'Questions as to the breadth of the maritime belt or the extent of the sway of the riparian states require no special consideration here. The facts render such discussion unnecessary.' Id., 202 U.S. 52, 26 S.Ct. 422.

See also United States v. State of California, supra, 332 U.S. at page 37, 67 S.Ct. at page 1667.

Preliminarily, it should be observed that in light of what has already been said, 363 U.S. at pages 24-30, 80 S.Ct. at pages 976-979, Louisiana's preadmission history is relevant in this case only to the extent that it aids in construing the Louisiana Act of Admission. The thrust of the State's argument on this score is that the boundaries fixed by the Act of Admission comprised the entire area acquired by the United States from France through the Louisiana Purchase, effected by the Treaty of Paris in 1803; that the extent of this area traces back, through cessions by France to Spain in 1762 and Spain to France in 1800, to what was first claimed by France in 1682; and that such area originally extended some 120 miles into the Gulf of Mexico, and in any case, by virtue of other events, at least three leagues into the Gulf.

For reasons now to be discussed we think that this historical thesis is not borne out by any of the documents or events on which Louisiana relies, but that to the contrary what has been shown us leads to the conclusion that Louisiana's preadmission territory, consistently with the Act of Admission, stopped at its coast and did not embrace any marginal sea.

1. The area which includes the present State of Louisiana was first claimed for France by La Salle in 1682, extending southward

'as far as (the Mississippi's) * * * mouth in the sea, or gulf of Mexico, about the twenty-seventh degree of the elevation of the North Pole * * *.' [114]

It is apparent from the face of La Salle's proclamation that it was the mouth of the Mississippi which defined the southerly limit of his claim. His expression of belief that the river mouth was at 'about' the 27th parallel does not indicate an intent to claim to that parallel, which is in fact some 120 miles south of the Mississippi's mouth. In any event, the proce s-verbal of Jacques de la Me tairie, notary of the La Salle expedition, [115] shows that the proclamation was issued after the mouth of the Mississippi had been reached and the party had returned upstream only far enough to find solid ground for the erection of a monument, and that La Salle then thought, mistakenly in fact, that they were at about the 27th parallel. Other documents also indicate that the river mouth defined the extent of the claim and that the territory included no marginal sea whatever. [116]

2. By a secret Treaty executed at Fontainebleau on November 3, 1762, France ceded to Spain 'all the country known under the name of Louisiana, as well as New Orleans and the island in which the place stands.' [117] By the secret Treaty of San Ildefonso, signed October 1, 1800, Spain retroceded the 'colony and province of Louisiana' to France. [118] Certainly there is nothing on the face of either of these Treaties to indicate that France or Spain claimed any territorial sea.

3. Louisiana argues, however, that certain treaties between France, Spain, and other nations evidence such an intent. Four of these treaties concern the right of the French to fish within certain distances of the coasts of the British possessions in North America, varying from three to 30 leagues. The relevant portions do not relate to French or Spanish territory at all. [119] In another, Great Britain undertook not to permit its subjects to navigate or fish within 10 leagues of coasts occupied by Spain 'in the Pacific Ocean, or in the South Seas,' so as to prevent illicit trade with Spanish settlements. [120] The Treaty does not relate to the area in question, and, far from being an assertion of a territorial claim by Spain, imposed an obligation of a limited nature on Great Britain alone. The same reasoning applies to another of these treaties, the Treaty between Spain and Tripoli, signed September 10, 1794, prohibiting the capture of any vessel within 10 leagues from coasts of the dominions of Spain. [121] Reliance is also placed on an ordinance promulgated by Philip II of Spain in October 1565, asserting rights within the visual horizon of the coasts of Spain and its possessions. [122] It may be questioned whether this ordinance even constituted an assertion of territorial jurisdiction as it is known today, especially in view of the fact that the concept of the territorial sea did not arise in international law until after this country achieved its independence. See United States v. State of California, supra, 332 U.S. 32-33, 67 S.Ct. 1665. Even if it did, the ordinance can hardly be taken as applying to a territory not acquired by Spain until 200 years later or as affecting the construction of the Act admitting Louisiana to the Union 250 years later. [123]

4. By the Treaty of Paris, signed April 30, 1803, France ceded to the United States the Louisiana Territory with all its rights and appurtenances 'as fully and in the same manner as they have been acquired by the French Republic, in virtue of the above-mentioned treaty (Treaty of San Ildefonso, Oct. 1, 1800), concluded with his Catholic Majesty,' including 'the adjacent islands belonging to Louisiana.' [124] To show that the Act admitting Louisiana to the Union must be construed as referring to the Union must Treaty, Louisiana relies on Article III of the Treaty, which required the United States to admit 'the ceded territory' to statehood as soon as possible. But since the historic documents to which our attention has been called fail to show that the ceded territory included any territorial sea, taking the Treaty as defining the scope of the Act of Admission only confirms the view that Louisiana's maritime boundary was fixed at, and not somewhere in, the Gulf of Mexico.

5. Louisiana also asserts that about the time of its admission, the United States was claiming three leagues of territorial waters in the Gulf, and that the Act of Admission was framed with reference to that claim. However, from the great variety of documentation presented by the parties, the most that could possibly be said is that the United States, contrary to the Government's contention, had not unequivocally asserted the applicability of the three-mile limit in the Gulf of Mexico. Assuming, as the defendants have here argued, that it would have been reasonable under international law for the United States to claim three leagues of territorial waters in the Gulf had it so chosen, we nevertheless cannot conclude that Congress meant to define Louisiana's boundaries by reference to a rule which was the subject of so much difference among nations and which had never been adopted by this country. The terms of the Act of Admission seem to point so strongly to the contrary that it would require much more convincing evidence than this to persuade us that the construction advanced by Louisiana is correct. Furthermore, it is significant that only a few years later, Congress admitted Mississippi and Alabama to the Union, describing their boundaries as including all islands within six leagues of the shore. See 363 U.S. at pages 81, 82, 80 S.Ct. at pages 1005 and 1006. If the three-league provision in Louisiana's Act of Admission was intended to reflect a policy of claiming three leagues of territorial waters, it is difficult to understand why Congress, so shortly thereafter, should have incorporated a six-league limit in an otherwise identical provision.

3. Postadmission Events.

To the extent that Louisiana's reliance on postadmission events is for the purpose of showing that the United States established a three-league 'national boundary' in the Gulf, they cannot help her case, for reasons previously discussed. 363 U.S. at pages 30-36, 80 S.Ct. at pages 979-982. We need not decide whether the United States ever claimed three leagues of territorial waters along the entire Gulf coast, which could in a sense be said to constitute a national boundary, or whether, if it did, Louisiana would have been entitled to extend its own boundary to that distance. Under the Submerged Lands Act, Louisiana's boundary must be measured at the time of her admission, unless a subsequent change was approved by Congress. If the Act of Admission fixed the boundary at the shore, neither action by Congress fixing greater boundaries for other States nor Executive policy on the extent of territorial waters could constitute Congressional approval of a maritime boundary for Louisiana. Louisiana, however, insists that certain of these events subsequent to admission must be considered in construing the Act of Admission.

1. We are urged to infer that since, as the Court today holds, three-league boundaries were fixed for Texas (363 U.S. at page 64, 80 S.Ct. at page 996) and Florida (363 U.S. at page 121, 80 S.Ct. at page 1026), and since, after Texas' admission, the Treaty of Guadalupe Hidalgo fixed the starting point of the boundary between the United States and Mexico at three leagues in the Gulf, Congress must have meant to treat Louisiana equally. The inference must be based primarily on the existence of the Texas and Florida boundaries, for the Treaty of Guadalupe Hidalgo relates only to the boundary between Texas and Mexico, and tends to prove nothing more than the existence of a three-league boundary for Texas. In view of the fact that shortly after Louisiana's admission, Congress fixed maritime boundaries for Mississippi and Alabama which, even on Louisiana's construction, would be different than three leagues, we can discern no consistent Congressional policy toward the maritime boundaries of the Gulf States at the time of Louisiana's admission, even if the much later actions with respect to Texas and Florida could be thought to have established such a policy. Cf. State of Louisiana v. State of Mississippi, supra, 202 U.S. at page 41, 26 S.Ct. at page 418. It would require clear evidence that such a policy was operative at the time Congress passed the Act admitting Louisiana to overcome language in that Act which points so strongly against the construction urged by Louisiana. Nor does the concept of equal footing require such a construction. While the ownership of certain lands within state boundaries has been held to be an inseparable attribute of the political sovereignty guaranteed equally to all States, see United States v. State of Texas, supra, 339 U.S. at page 716, 70 S.Ct. at page 922, the geographic extent of those boundaries, and thus of the lands owned, clearly has nothing to do with political equality. A fortiori this is true in the case of maritime boundaries beyond low-water mark, since, except as granted by Congress, the States do not own the lands beneath the marginal seas. See United States v. State of California, supra; State of Alabama v. State of Texas, supra.

2. Certain treaties successively entered into from 1819 to 1838 by the United States with Spain, Mexico, and the Republic of Texas establishing the boundary between Texas and the United States are relied on as indicating that the State and Federal Governments thought that Congress had fixed a threeleague maritime boundary for Louisiana. [125] Louisiana contends that the treaties fixed the beginning of the international boundary at a point three leagues from land, and that therefore the southwestern corner of Louisiana as well as the southeastern corner of Texas must have been regarded as extending seaward to that distance. Whether or not such reasoning is valid, the language of the treaties refutes the premise that the international boundary began three leagues from land. Both the 1819 and the 1828 treaties recited that '(t)he boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea * * *.' The Treaty of 1838 referred to the Treaty of 1828, and provided for a survey of 'that portion of the said boundary which extends from the mouth of the Sabine, where that river enters the Gulph of Mexico, to the Red river.' [126]

3. In its answer to the original complaint, Louisiana alleged certain acts of sovereignty over the marginal sea and seabed and the acquiescence of the Federal Government therein. [127] Although it has now abandoned its ear contention that these acts establish its title by prescription and estoppel apart from the Submerged Lands Act, it now urges that they indicate a subsequent practical construction of Louisiana's Act of Admission. Taking these facts as proved, they do not have the effect urged by Louisiana. They indicate only that until the 1930's, the Federal Government may have believed that lands beneath the marginal sea belonged to the States. There is no allegation that the geographical extent of Louisiana's assertions, assuming that such assertions were made beyond three miles, was drawn in question, or that the question of Louisiana's boundary was considered. Some of the acts alleged constituted police power measures which a State can enforce it has now abandoned its earlier contention Skiriotes v. State of Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193. As to acts touching the development of the submerged lands themselves, the United States would have had no reason to object to activity beyond Louisiana's boundary, since not until 1945 did the Federal Government assert any rights in the Continental Shelf for itself. If any of the other acts alleged conflicted with this Nation's policy toward territorial waters, objection would have lain regardless of the location of the State's boundary, and lack of objection is therefore, for the purposes of this case, inconclusive.

4. Finally, Louisiana relies on a 1954 statute of its own establishing the State's boundary at three leagues seaward of the line between inland and open waters. Act 33 of 1954, LSA-Rev.Stat. 49:1. It is said that in so legislating Louisiana followed the coastline as defined in regulations promulgated by the Commandant of the Coast Guard, pursuant to the Federal Act of February 19, 1895, 28 Stat. 672, 33 U.S.C. § 151, 33 U.S.C.A. § 151, and that because of this, and also on considerations of convenience and certainty, this state enactment should be accepted as establishing Louisiana's coast. We think the consideration of this contention should be postponed to a later stage of this case. We decide now only that Louisiana is entitled to submerged-land rights to a distance no greater than three geographical miles from its coastlines, wherever those lines may ultimately be shown to be.

Mississippi's claim to a three-league seaward boundary must fail largely for the same reasons that have led us to reject the similar claim of Louisiana.

The territory which now comprises the part of Mississippi lying south of the 31st parallel was originally ceded by France to Great Britain by the Treaty of Paris of February 10, 1763. [128] Great Britain designated this territory part of West Florida, and by proclamation of October 7, 1763, King George III described West Florida as

'bounded to the southward by the gulf of Mexico, including all islands within six leagues of the coast, from the river Apalachicola to Lake Pontchartrain * * *.' [129]

On September 3, 1783, Great Britain and Spain signed a treaty by which Great Britain ceded this area to Spain as part of a cession embracing all of western and eastern Florida. [130]

By the Treaty of San Ildefonso, signed October 1, 1800, Spain ceded to France 'the colony and province of Louisiana.' See 363 U.S. at page 72, 80 S.Ct. at page 1001. In the Treaty of Paris of April 30, 1803, France ceded Louisiana to the United States to the same extent as France had acquired it by virtue of the Treaty of San Ildefonso. See 363 U.S. at page 74, 80 S.Ct. at page 1002. A dispute arose between the United States and Spain as to whether, by the Treaty of San Ildefonso, Spain had conveyed to France any land east of the Mississippi River (including any part of West Florida), and therefore whether France could have subsequently passed that territory to the United States in the Treaty of Paris. On October 27, 1810, President Madison claimed the right to possession of the area, [131] and on May 14, 1812, Congress made it part of the Mississippi Territory. [132] On March 1, 1817, Congress authorized the creation of the State of Mississippi, specifically setting out its boundaries, in part as follows:

'thence due south to the Gulf of Mexico, thence westwardly, including all the islands within six leagues of the shore, to the most eastern junction of Pearl river with Lake Borgne * * *.' [133] (Emphasis added.)

The Mississippi Constitution, approved by the Act admitting the State to the Union on December 10, 1817, [134] contained an identical provision. Finally, by the Treaty of February 22, 1819, Spain purported to cede East and West Florida to the United States. 8 Stat. 254. It was determined, however, in Foster v. Neilson, 2 Pet. 253, 7 L.Ed. 415, that the portion of the State of Mississippi south of the 31st parallel passed to the United States as part of the Louisiana Purchase under the Treaty of Paris in 1803, and not as part of West Florida under the Spanish Treaty of 1819.

We have already held with respect to Louisiana's claim to a three-league maritime boundary that an Act of Admission which refers to all islands within a certain distance of the shore does not appear on its face to mean to establish a boundary line that distance from the shore, including all waters and submerged lands as well as all islands. There is nothing in Mississippi's history, just as there is nothing in Louisiana's, to cause us to depart from that conclusion in this instance. Indeed, Mississippi relies almost entirely on the fact that the very language which defeats its contention was repeatedly used, in the 1763 Proclamation by King George III, in the Congressional Enabling Act, and in the State Constitution, and was implicitly incorporated in mesne conveyances.

Mississippi also urges that the draftsmen of the provision must have intended to include all waters and submerged lands within six leagues from shore because the waters are very shallow and the islands are constantly shifting. This argument, however, appears only to strengthen the conclusion that it was islands upon which the provision focused, and not waters where there were no islands.

We must told that Mississippi is not entitled to rights in submerged lands lying beyond three geographical miles from its coast. [135]

The preadmission history of Alabama is essentially the same as that of Mississippi, the portion of the State lying south of the 31st parallel having passed by the same mesne conveyances from France to the United States. That portion was incorporated into the Mississippi Territory by the Act of May 14, 1812, [136] and became a part of the State of Alabama formed out of that territory. Its Act of Admission [137] incorporated the Enabling Act, which described its boundary in part as follows:

'thence due south, to the Gulf of Mexico, thence eastwardly, including all the islands within six leagues of the shore, to the Perdido river * * *.' [138]

The same reasons applicable to the claims of Louisiana and Mississippi compel us to hold that Alabama is not entitled to rights in submerged lands lying beyond three geographical miles from its coast. [139]

Conclusions.

On the basis of what has been said in this opinion, we reach the following conclusions:

1. As to the States of Louisiana, Mississippi, and Alabama, a decree will be entered (1) declaring that the United States is entitled, as against these States, to all the lands, minerals, and other natural resources underlying the Gulf of Mexico more than three geographical miles from the coast of each such State, that is, from the line of ordinary low-water mark and outer limit of inland waters, and extending seaward to the edge of the Continental Shelf; (2) declaring that none of these States is entitled to any interest in such lands, minerals, and resources; (3) enjoining these States from interfering with the rights of the United States therein; (4) directing each such State appropriately to account to the United States for all sums of money derived therefrom subsequent to June 5, 1950: [140] and (5) dismissing the cross bill of the State of Alabama. [141]

2. As to the State of Texas, a decree will be entered (1) declaring that the State is entitled, as against the United States, to the lands, minerals, and other natural resources underlying the Gulf of Mexico to a distance of three leagues from Texas' coast, that is, from the line of ordinary low-water mark and outer limit of inland waters; (2) declaring that the United States is entitled, as against Texas, to no interest therein; (3) declaring that the United States is entitled, as against Texas, to all such lands, minerals, and resources lying beyond that area, and extending to the edge of the Continental Shelf; (4) enjoining the State from interfering with the rights of the United States therein; and (5) directing Texas appropriately to account to the United States for all sums of money derived since June 5, 1950, from the area to which the United States is declared to be entitled.

3. Jurisdiction over this case will be retained for such further proceedings as may be necessary to effectuate the rights adjudicated herein.

4. The motions of Louisiana and Mississippi to take depositions and present evidence are denied, without prejudice to their renewal in such further proceedings as may be had in connection with matters left open by this opinion. [142] In so deciding we have not been unmindful of this Court's liberality in original cases of 'allowing full development of the facts.' See United States v. State of Texas, 339 U.S. 707, 715, 70 S.Ct. 918, 922, 94 L.Ed. 1221. We think, however, that the conclusions to be drawn from the historical documents relied on by Louisiana, Mississippi, and Alabama are so clear as to leave no issue presently involved open to dispute, and that we would not be justified in postponing the granting of the relief to which we find the United States entitled as against these three States. [143] By the same token we see no need to postpone the adjudication of the issues now presented as between the United States and Texas, and we do not understand the Government indeed to contend otherwise.

The parties may submit an appropriate form of decree giving effect to the conclusions reached in this opinion. It is so ordered.

Decree in accordance with opinion.

The CHIEF JUSTICE and Mr. Justice CLARK took no part in the consideration or decision of these cases.

[For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BRENNAN, MR. JUSTICE WHITTAKER and MR. JUSTICE STEWART, see post, p. 129. (363 U.S. 129, 80 S.Ct. 1030.)]

MR. JUSTICE BLACK, concurring in part and dissenting in part.

MR. JUSTICE DOUGLAS, dissenting in part.

Notes[edit]

^1  The suit was originally instituted against Louisiana alone. Pursuant to the order of this Court the suit was thereafter broadened to include the other defendant States. 354 U.S. 515, 77 S.Ct. 1373, 1 L.Ed.2d 1525.

^2  See note 140, infra.

^3  In 1945, the United States had proclaimed, as against other nations, its jurisdiction and control over such submerged lands to the edge of the Continental Shelf. Presidential Proclamation No. 2667, Sept. 28, 1945, 10 Fed.Reg. 12303, 59 Stat. 884. The accompanying Executive Order provided that '(n)either this Order nor the aforesaid proclamation shall be deemed to affect the determination by legislation or judicial decree of any issues between the United States and the several states, relating to the ownership or control of the subsoil and sea bed of the continental shelf within or outside of the three-mile limit.' Exec.Order No. 9633, 10 Fed.Reg. 12305, 5 U.S.C.A. § 485 note.

The 'continental shelf,' in the geological sense, is the gently sloping plain which underlies the seas adjacent to most land masses, extending seaward from shore to the point at which there is a marked increase in the gradient of the decline and where the continental slope leading to the true ocean bottom begins. In the Gulf of Mexico, the edge of the Continental Shelf, as so defined, lies as much as 200 miles from shore in some places. Christopher, The Outer Continental Shelf Lands Act: Key to a New Frontier, 6 Stan.L.Rev. 23, 24; H.R.Rep. No. 215, 83d Cong., 1st Sess. 6.

^4  1937-1938, 75th Congress:

S. 2164, S.J.Res. 208. Both would have confirmed the rights in the Federal Government. S.J.Res. 208 was passed by the Senate but not by the House.

1939, 76th Congress, 1st Session:

H.J.Res. 176, H.J.Res. 181, S.J.Res. 24, S.J.Res. 83, S.J.Res. 92. All would have confirmed the rights in the Federal Government.

1945-1946, 79th Congress:

H.J.Res. 118 and 17 similar bills, H.J.Res. 225, S.J.Res. 48. All would have quitclaimed rights to the States within their bound-

aries. H.J.Res. 225 was passed by both Houses but vetoed by President Truman.

1948, 80th Congress, 2d Session:

H.R. 5992 and S. 1988 (quitclaim measures); S. 2222, H.R. 5890, and S. 2165 (to confirm States' rights in lands underlying inland waters and the Federal Government's rights in lands underlying the marginal sea). H.R. 5992 was passed by the House.

1949-1950, 81st Congress:

1st Sess: H.R. 5991, H.R. 5992 ('compromise' bills); S. 155, S. 1545 (quitclaim measures); S. 923, S. 2153, H.R. 354 (to confirm States' rights in lands beneath inland waters and Federal Government's rights in lands beneath marginal seas); S. 1700 (to establish a federal reserve).

2d Sess: H.R. 8137 (quitclaim measure); S.J.Res. 195 (interim management bill).

1951-1952, 82d Congress:

S.J.Res. 20, H.J.Res. 131, H.J.Res. 274 (interim management bills); H.R. 4484, S. 940 (quitclaim measures). H.R. 4484 was passed by the House in the 1st Session; S.J.Res. 20 was passed by the Senate after amending it by substituting therefor S. 940, in the 2d Session. S.J.Res. 20 as amended prevailed in conference, but was vetoed by President Truman.

1953, 83d Congress, 1st Session:

H.R. 2948 and 40 other bills, resulting in drafting of H.R. 4198 by Committee, S.J.Res. 13 (quitclaim measures); H.R. 5134, S. 1901 (to provide for administration of submerged lands seaward of those granted to States and to the edge of Continental Shelf). S.J.Res. 13 became the Submerged Lands Act, and S. 1901 became the Outer Continental Shelf Lands Act.

^5  Section 3 provides:

'(a) It is hereby determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are hereby, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States or the persons who were on June 5, 1950, entitled thereto under the law of the respective States in which the land is located, and the respective grantees, lessees, or successors in interest thereof;

'(b)(1) The United States hereby releases and relinquishes unto said States and persons aforesaid, except as otherwise reserved herein, all right, title, and interest of the United States, if any it has, in and to all said lands, improvements, and natural resources; (2) the United States hereby releases and relinquishes all claims of the United States, if any it has, for money or damages arising out of any operations of said States or persons pursuant to State authority upon or within said lands and navigable waters * * *.'

^6  Nine marine, nautical, or geographic miles, or approximately 101/2 land, statute or English miles.

^7  Section 2 provides:

'(a) The term 'lands beneath navigable waters' means-

'(2) all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each such State and to the boundary line of each such State where in any case such boundary as it existed at the time such State became a member of the Union, or as heretofore approved by Congress extends seaward (or into the Gulf of Mexico) beyond three geographical miles * * *

'(b) The term 'boundaries' includes the seaward boundaries of a State or its boundaries in the Gulf of Mexico or any of the Great Lakes as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress, or as extended or confirmed pursuant to section 4 hereof but in no event shall the term 'boundaries' or the term 'lands beneath navigable waters' be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico;

'(c) The term 'coast line' means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters * * *.'

^8  Section 4 provides:

'The seaward boundary of each original coastal State is hereby approved and confirmed as a line three geographical miles distant from its coast line * * *. Any State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line. * * * Any claim heretofore or hereafter asserted either by constitutional provision, statute, or otherwise, indicating the intent of a State so to extend its boundaries is hereby approved and confirmed, without prejudice to its claim, if any it has, that its boundaries extend beyond that line. Nothing in this section is to be construed as questioning or in any manner prejudicing the existence of any State's seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.'

^9  Section 6(a) provides:

'The United States retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership, or the rights of management, administration, leasing, use, and development of the lands and natural resources which are specifically recognized, confirmed, established, and vested in and assigned to the respective States and others by section 3 of this Act.'

^10  Section 9 provides:

'Nothing in this Act shall be deemed to affect in any wise the rights of the United States to the natural resources of that portion of the subsoil and seabed of the Continental Shelf lying seaward and outside of the area of lands beneath navigable waters, as defined in section 2 hereof, all of which natural resources appertain to the United States, and the jurisdiction and control of which by the United States is hereby confirmed.'

Later in the same year, Congress passed the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. §§ 1331-1343, 43 U.S.C.A. §§ 1331-1343, which provides in detail for federal exploitation of the submerged lands of the Continental Shelf beyond those granted to the States by the Submerged Lands Act.

^11  See S.Rep. No. 133, 83d Cong., 1st Sess., pt. 2 (minority views), 6.

^12  This holding was approved in a considerable number of subsequent cases. See, e.g., Smith v. Maryland, 18 How 71, 74, 15 L.Ed. 269; Mumford v. Wardwell, 6 Wall. 423, 436, 18 L.Ed. 756; Weber v. Board of Harbor Commissioners, 18 Wall. 57, 65-66, 21 L.Ed. 798; McCready v. Virginia, 94 U.S. 391, 394, 24 L.Ed. 248; Shively v. Bowlby, 152 U.S. 1, 26-28, 14 S.Ct. 548, 557-558, 38 L.Ed. 331; Manchester v. Massachusetts, 139 U.S. 240, 259-260, 11 S.Ct. 559, 562-563, 35 L.Ed. 159; United States v. Mission Rock Co., 189 U.S. 391, 404, 23 S.Ct. 606, 608, 47 L.Ed. 865; State of Louisiana v. Mississippi, 202 U.S. 1, 52, 26 S.Ct. 408, 422, 50 L.Ed. 913; The Abby Dodge, 223 U.S. 166, 174, 32 S.Ct. 310, 312, 56 L.Ed. 390; Borax Consolidated Ltd., v. Los Angeles, 296 U.S. 10, 15-16, 56 S.Ct. 23, 25-26, 80 L.Ed. 9. See also Martin v. Waddell, 16 Pet. 367, 410, 10 L.Ed. 997.

^13  This Court in the California case, supra, 332 U.S. at page 36, 67 S.Ct. at page 1667, stated that in following the Pollard case, it had previously used language strong enough to indicate that the Court then believed that states not only owned tidelands and soil under navigable inland waters, but also owned soils under all navigable waters within their territorial jurisdiction, whether inland or not.'

^14  See S.Rep. No. 133, 83d Cong., 1st Sess. 21, U.S.Code Cong. and Adm.News 1953, p. 1385 et seq.

^15  One English, statute, or land mile equals approximately .87 marine, nautical, or geographical mile. The conventional '3-mile limit' under international law refers to three marine miles, or approximately 3.45 land miles.

^16  See note 4, 363 U.S. 6, 80 S.Ct. 966. The legislative history of all the bills considered prior to enactment of the Submerged Lands Act in 1953 is directly relevant to the latter Act, since the purposes and phraseology of such bills, and the objections raised against them were substantially similar. During the hearings on the final bills, all prior hearings on predecessor bills were expressly incorporated into the record, see Hearings before Subcommittee No. 1 of the House Committee on the Judiciary, 83d Cong., 1st Sess., on H.R. 2948 and similar bills 1-2 (hereinafter cited as 1953 House hearings); Hearings before the Senate Committee on Interior and Insular Affairs on S.J.Res. 13 and other bills 6-8 (hereinafter cited as 1953 Senate Hearings), and similar references to past hearings and debates were made on the floor of Congress, see 99 Cong.Rec. 2554, 2613, 4097.

^17  H.R.Rep. No. 1778, 80th Cong., 2d Sess., to accompany H.R. 5992, at 1, 2, 3, 16 (Apr. 21, 1948); 'H.R. 5992 is, in substance, the same as numerous bills introduced in the House. * * * (T)he aforementioned bills (were) introduced in the Congress to preserve the status quo as it was thought to be prior to the California decision * * * to confirm and establish the rights and claims of the 48 States, long asserted and enjoyed with the approval of the Federal Government, to the lands and resources beneath navigable waters within their boundaries * * *. The repeated assertions by our highest Court for a period of more than a century of the doctrine of State ownership of all navigable waters, whether inland or not, and the universal belief that such was the settled law, have for all practical purposes established a principle which the committee believes should be a matter of policy be recognized and confirmed by Congress as a rule of property law.'

S.Rep. No. 1592, 80th Cong., 2d Sess., to accompany S. 1988, at 17-18 (June 10, 1948), after noting that the legal profession had long believed that the States owned the lands under navigable waters within their territorial jurisdiction, went on to comment:

'The evidence is conclusive that not only did our most eminent jurists so believe the law to be, but such was the belief of lower Federal court jurists and State supreme court jurists as reflected by more than 200 opinions. The pronouncements were accepted as the settled law by lawyers and authors of leading legal treatises.

'The present Court in the California decision did not expressly overrule these prior Supreme Court opinions but, in effect, said that all the eminent authorities were in error in their belief.

'For the first time in history the Court drew a distinction between the legal principles applicable to bays, harbors, sounds, and other inland waters on the one hand, and to submerged lands lying seaward of the low-water mark on the other, although it appears the Court had ample opportunity to do so in many previous cases, but failed or refused to draw such distinction. In the California decision the

Court refused to apply what it termed 'the old inland water rule' to the submerged coastal lands; however, historically speaking, it seems clear that the rule of State ownership of inland waters is, in fact, an offshoot of the marginal sea rule established much earlier.'

H.R.Rep. No. 695, 82d Cong., 1st Sess., to accompany H.R. 4484, at 5 (July 12, 1951):

'Title II merely fixes as the law of the land that which, throughout our history prior to the Supreme Court decision in the California case in 1947, was generally believed and accepted to be the law of the land; namely, that the respective States are the sovereign owners of the land beneath navigable waters within their boundaries and of the natural resources within such lands and waters. Therefore, title II recognizes, confirms, vests, and establishes in the States the title to the submerged lands, which they have long claimed, over which they have always exercised all the rights and attributes of ownership.'

S.Rep. No. 133, 83d Cong., 1st Sess., to accompany S.J.Res. 13, at 7-8 (Mar. 27, 1953). U.S.Code Cong. and Adm.News 1953, page 1481:

'All of these areas of submerged lands have been treated alike in this legislation because they have been possessed, used, and claimed by the States under the same rule of law, to wit: That the States own all lands beneath navigable waters within their respective boundaries. Prior to the California decision, no distinction had been made between lands beneath inland waters and lands beneath seaward waters so long as they were within State boundaries.

'The rule was stated by the Supreme Court in the early case of Pollard v. Hagan * * *.

'The purpose of this legislation is to write the law for the future as the Supreme Court believed it to be in the past-that the States shall own and have proprietary use of all lands under navigable waters within their territorial jurisdiction, whether inland or seaward, subject only to the governmental powers delegated to the United States by the Constitution.'

^18  For example, the very first 'quitclaim' bill introduced in Congress-H.J.Res. 118, 79th Cong., 1st Sess., provided:

'Resolved * * * That, in consideration of the premises, the United States of America hereby releases, premises, and quitclaims all right, title, interest, claim, or demand of the United States of America in and to all lands beneath tidewaters and all lands beneath navigable waters within the boundaries of each of the respective States * * *.'

1. Confirmation of All Boundaries at Three Miles.

^19  See, e.g., 91 Cong.Rec. 8867 (remarks of Representative Gearhart); 92 Cong.Rec. 10310 (remarks of Representative Sumners). See also 92 Cong.Rec. 9519 (remarks of Senator Overton).

^20  H.J.Res. 118, 79th Cong., 1st Sess.; H.J.Res. 225, 79th Cong., 1st Sess.; H.R. 5992, 80th Cong., 2d Sess.; S. 1988, 80th Cong., 2d Sess. H.J.Res. 118 and H.J.Res. 225 used the term 'lands beneath tidewaters' to denote the lands beneath the navigable waters of the marginal sea.

^21  See H.R.Rep. No. 927, 79th Cong., 1st Sess., to accompany H.J.Res. 225, at 2 (July 17, 1945): 'The ownership by the States of these lands as above stated is coextensive with the States' boundaries, which in the case of the coastal States is in no instance less than 3 miles from the coast line.' 92 Cong.Rec. 9541 (remarks of Senator Cordon): '(T)he joint resolution is limited to those submerged lands within the boundaries of the several States, with this exception, that if there should be-and there conceivably cannot be a State whose boundary did not go 3 miles at sea-then it would cover 3 miles at sea.'

^22  California Constitution of 1849, Art. XII, § 1, West's Ann. California claimed that this boundary was ratified by the Act admitting it to the Union. 9 Stat. 452. See 92 Cong.Rec. 9614 (remarks of Senator Knowland). Attorney General Clark testified that six of the 11 original coastal States had not yet expressly claimed a three-mile boundary in the marginal sea, and that the other five had done so unilaterally long subsequent to the formation of the Union-Massachusetts in 1859 (see Stat.1859, c. 289, as amended, Mass.Gen.Laws Ann. c. 1, § 3), Rhode Island in 1872, (R.I., Gen.Stat.1872, c. 1, § 1), New Jersey in 1906 (see N.J.Stat.Ann., Tit. 40, § 18-5), New Hampshire in 1901 (see N.H.Laws 1901, c. 115), and Georgia in 1916 (see Acts 1916, p. 29, Ga.Code Ann. § 15-101).

^23  See 92 Cong.Rec. 9524-9526 (remarks of Senator Donnell); Joint Hearings before the Committees on the Judiciary of the Congress on S.1988 and similar House bills, 80th Cong., 2d Sess. 885-895 (hereinafter cited as 1948 Joint Hearings).

^24  Id., 93-95, 884-886.

^25  Because of fears that this permission to extend boundaries would not protect grantees of the original States who had received their grants at a time when the State had not yet expressly extended its boundaries, a provision was subsequently inserted as the first sentence of § 4 of the present Act, absolutely confirming the boundary of each original State at three miles. See 1953 Senate Hearings, pt. II (Exec. Sess.), 1316; 99 Cong.Rec. 2697. The last sentence of § 4 was first inserted without explanation in H.R. 8137, 81st Cong., 2d Sess., and was carried forward as part of S.J.Res. 20, 82d Cong., 2d Sess., as it was amended and passed by Congress and vetoed by President Truman. See 98 Cong.Rec. 2886.

^26  See 91 Cong.Rec. 8858; 92 Cong.Rec. 10310. See also Manchester v. Com. of Massachusetts, 139 U.S. 240, 257, 258, 11 S.Ct. 559, 562, 35 L.Ed. 159.

^27  See, e.g., 98 Cong.Rec. 2884-2885 (remarks of Senator Holland). See also H.R.Rep. No. 927, 79th Cong., 1st Sess. 2.

^28  See 98 Cong.Rec. 3351 (remarks of Senator Holland); 1953 House Hearings 222 (remarks of Attorney General Brownell); 99 Cong.Rec. 2757, 2922-2923, 4095 (remarks of Senator Holland). Solicitor General Perlman, while rejecting the idea that the existence of a seaward boundary entitled the State to ownership of the underlying lands, stated that California was entitled to a boundary for other purposes of three nautical miles, as opposed to the three English miles asserted by its constitution, because of the federal three-mile policy. Hearings before the Senate Committee on Interior and Insular Affairs, on S.J.Res. 20 and S. 940, 82d Cong., 1st Sess. 40 (hereinafter cited as 1951 Senate Hearings).

^29  See 92 Cong.Rec. 9541 (remarks of Senator Cordon); id., 9619 (remarks of Senator Capehart); 99 Cong.Res. 3265 (remarks of Senator Hill).

^30  Leander I. Shelley, counsel for the port authorities, whose proposal that all States be permitted to extend their boundaries to three miles was adopted by the Committee, said: 'My position is that prior to the decision of the Supreme Court in the California case, practically everybody concerned * * * was under the impression that all the coastal States owned the land for 3 miles out. * * *

'Whether their failure to be in that position is because of a title question or boundary question is immaterial to us. Our position is that they should be restored to where they thought they were.' 1948 Joint Hearings 894. See also 92 Cong.Rec. 9515 9516 (remarks of Senator O'Mahoney); id., 9519 (remarks of Senator Overton); 99 Cong.Rec. 4095 (remarks of Senator Holland).

^31  See 98 Cong.Rec. 3351-3352 (remarks of Senator Holland).

2. Boundaries Beyond Three Miles.

^32  E.g., 91 Cong.Rec. 8867; 92 Cong.Rec. 9518; Hearings before the Senate Committee on Interior and Insular Affairs on S. 155, S. 923, S. 1545, S. 1700, and S. 2153, 81st Cong., 1st Sess. 131 (hereinafter cited as 1949 Senate Hearings); 1953 Senate Hearings 212-234; 99 Cong.Rec. 2620, 2830, 4171-4175.

^33  E.g., 92 Cong.Rec. 9516; 99 Cong.Rec. 2621, 2752, 4095 4096.

^34  See 1949 Senate Hearings 187; 98 Cong.Rec. 3352; 1953 Senate Hearings 47-48, 536, 1093, 1115; 99 Cong.Rec. 2896.

^35  Hearings before the Senate Judiciary Committee on S.J.Res. 48 and H.J.Res. 225, 79th Cong., 2d Sess. 228-230 (hereinafter cited as 1946 Senate Hearings); 1951 Senate Hearings 420.

^36  The structure of § 4 was so explained by Senators Cordon, Holland, and Long. 1953 Senate Hearings, pt. II (Exec. Sess.), 1317-1318; 99 Cong.Rec. 2621, 2698, 4095-4096.

^37  92 Cong.Rec. 9441-9442, 9516; 1953 Senate Hearings 48-49; id., pt. II (Exec. Sess.), 1318, 1414-1415; 99 Cong.Rec. 2558 2559, 2620-2622, 2632-2633, 2694-2695, 2703, 2746, 2754-2755, 2757, 2896-2897, 2933, 4095-4096, 4116.

^38  98 Cong.Rec. 3347, 3350 (Senators Connally and Holland); 1953 House Hearings 181, 195 (Secretary of the Interior McKay); 1953 Senate Hearings 957 (Attorney General Brownell); letter from President Eisenhower to Jack Porter, Republican National Committeeman, Dec. 4, 1957, reported in Houston Post, Dec. 7, 1957, § 1, pp. 1-2; letter from President Eisenhower to Senator Anderson, Apr. 24, 1953, reprinted in 99 Cong.Rec. 3865; letter from President Eisenhower to Price Daniel, Governor of Texas, Nov. 7, 1957, printed at p. 294 of Texas' brief.

^39  H.J.Res. 118, 79th Cong., 1st Sess.; H.J.Res. 225, S.J.Res. 48, 79th Cong., 2d Sess.; S. 1988 and H.R. 5992, 80th Cong., 2d Sess.

^40  See, e.g., 1946 Senate Hearings 183; 91 Cong.Rec. 8867; 92 Cong.Rec. 9515-9518.

^41  E.g., 92 Cong.Rec. 9518, 9628 (remarks of Senator Connally); id., 9524 (remarks of Senator Donnell).

^42  La. Act No. 55 of 1938, LSA-Rev.Stat. 49:1 (27 miles); Act of May 16, 1941, L.Tex., 47th Leg., p. 454 (27 miles), Act of May 23, 1947, L.Tex., 50th Leg., p. 451 (outer edge of Continental Shelf), Vernon's Tex.Civ.Stat. Art. 5415a. See also Act of May 25, 1947, L.Tex., 50th Leg., p. 490, Vernon's Tex.Civ.Stat. Art. 1592a (boundaries of counties extended to edge of Continental Shelf).

^43  An amendment was first proposed for that purpose by Senator Capehart on the floor during consideration of H.J.Res. 225, 79th Cong., 2d Sess., 92 Cong.Rec. 9541, 9619. It did not contain the 'heretofore approved by the Congress' provision (see note 7, 363 U.S. 9, 80 S.Ct. 968), and was defeated, apparently on the ground that the boundaries of some States might have been lawfully altered since their admission. See 92 Cong.Rec. 9630 (remarks of Senator McCarran); id., 9632 (amendment defeated). During the Eightieth Congress, Second Session, H.R. 5992 and S. 1988 were originally introduced with present boundaries still the measure of the grant. During the hearings on the bills, the matter of unilateral extensions was called to the Committee's attention several times. 1948 Joint Hearings 653-654 (Attorney General Clark), id., 734 (Secretary of the Interior Krug), and an amendment specifically incorporating the twofold test of the present Act was proposed to the Committee by Leander I. Shelley, counsel for the port authorities, id., 886. Both H.R. 5992 and S. 1988, when reported out of Committee, incorporated the proposed change. See 94 Cong.Rec. 5154, S.Rep. No. 1592, 80th Cong., 2d Sess. 2.

^44  Representative Willis of Louisiana made clear the nature of the inquiry it was contemplated the courts would make to ascertain the location of 'historic boundaries':

'Mr. Willis. Do you know of a better criteria than a historic approach?

'Secretary McKay. No, sir.

'Mr. Willis. Let us apply that criteria to Texas, for instance, and I think you and I are in thorough agreement. Texas was a republic. The Republic of Texas took certain action. Then there was a treaty between the Republic of Texas and the United States preliminary to admission. There might have been maps exhibited or maps in existence at that time. Then Congress passed an act admitting Texas into the Union, and then Texas adopted a constitution delimiting its historic boundaries. Those are the historic documents that set forth Texas' title; is that correct?

'Secretary McKay. That is right. If my memory is correct, the United States would not take the land. They gave it bank to Texas.

'Mr. Willis. That is right. There is nothing unusual about that. Let me illustrate the point in this way. I know you are not a lawyer, but I think you can follow this. If a farmer should consult a lawyer to find out what the limits of his farm are, that lawyer would have to examine the papers. He would have to go first to the patent. He would have to consult all the deeds in the chain of title. There might be maps attached to those deeds which help to interpret them. After his study he would give an opinion on the limits, based upon the history of that title, and every link in the chain.

'* * * There has been some talk here this morning about 3 miles. The principle, though, that I think you and I agree on is that we have to go to the documents to find out what our historic boundaries are?

'Secretary McKay. Yes, sir.' 1953 House Hearings 197-198.

And on the floor of the House, he explained 'historic boundaries' as follows:

'You will hear a great deal during general debate today, first about the historic boundaries and second about the outer continental shelf of the States. Let me explain what these terms mean.

'Each State was admitted into the Union by an act of Congress, and each State adopted a constitution which was approved by the Congress. The act of Congress and the first Constitution defined the boundaries of each State in the first instance. In some cases treaties were involved. Thus the Louisiana Territory was retroceded or reconveyed by Spain to France in 1803, and then France, in turn, transferred the Louisiana Territory to the United States. Thereafter, Louisiana was admitted into the Union as a State under an act of Congress of 1812, and the first Constitution of Louisiana, of 1812, was approved by the Congress. Both Spain and France exerted influence over and claimed, owned, and controlled a marginal belt as part of the Louisiana Territory, as shown by maps then used and still in existence.

'Obviously, we must resort to all of such ancient documents in order to determine the true and actual historic boundaries of each State, and as a practical matter, that is exactly what this bill permits and accomplishes. I do not know of any better criteria for the establishment of the boundaries of the States than a historic approach.' 99 Cong.Rec. 2504.

^45  See 99 Cong.Rec. 4174-4175 (remarks of Senator Daniel); State of New Mexico v. State of Texas, 275 U.S. 279, 48 S.Ct. 126, 72 L.Ed. 280; 276 U.S. 557, 48 S.Ct. 437, 72 L.Ed. 698; 276 U.S. 558, 48 S.Ct. 344, 72 L.Ed. 699; State of New Mexico v. State of Colorado, 267 U.S. 30, 45 S.Ct. 202, 69 L.Ed. 499.

^46  1953 Senate Hearings, pt. II (Exec. Sess.), 1317-1319; 99 Cong.Rec. 3551-3552, 4095.

^47  It is worth observing that at one time the claims protected from prejudice by § 4 included not only those based on state constitutional or statutory provisions, but also those based on 'any treaty ratified by the Senate of the United States' or on 'an act of Congress.' 99 Cong.Rec. 2567. This provision was inserted specifically to preserve Texas' claim based on the Joint Resolution of Annexation (see 80 S.Ct. 983) which was loosely referred to as a 'treaty' between Texas and the United States. Id., 2568. See also 1953 House Hearings 301-302.

^48  1919 Senate Hearings 138-139; 1953 Senate Hearings 957, 1076-1078; 99 Cong.Rec. 2504, 2558-2559, 2746, 2754, 2755, 2933, 4095, 4096, 4116, 4171, 4175, 4477.

^49  E.g., 99 Cong.Rec. 2916 (remarks of Senator Douglas).

^50  1948 Joint Hearings 618 (Attorney General Clark); Hearings before Subcommittee No. 1 of the House Judiciary Committee on H.R. 5991 and H.R. 5992, 81st Cong., 1st Sess. 196 (Solicitor General Perlman); 1951 Senate Hearings 40, 393 (Solicitor General Perlman); 97 Cong.Rec. 9167 (letter from Solicitor General Perlman introduced by Representative Celler); 98 Cong.Rec. 5247 (Representatives Mansfield and Feighan); 1953 Senate Hearings 27 (Assistant Secretary of State Morton); id., 663 (Senator Anderson); id., 678-679, 680-684 (former Solicitor General Perlman); id., 1053-1086 (State Department Deputy Legal Adviser Tate); 99 Cong.Rec. 2502-2503 (Representative Hays); id., 2568 (Representative Yates); id., 3034 (Senator Anderson).

^51  1953 Senate Hearings 1051-1086.

^52  1953 Senate Hearings 326; id., pt. II (Exec. Sess.), 1415.

^53  Hearings before the House Judiciary Committee and a Special Subcommittee of the Senate Judiciary Committee on H.J.Res. 118 and other bills, 79th Cong., 1st Sess. 23; 91 Cong.Rec. 8867; 1949 Senate Hearings 137-138; 1953 Senate Hearings 670, 1076-1078, 1082-1084; 99 Cong.Rec. 4074-4075, 4172-4173. Even Senator Anderson, who was opposed to the bill, in proposing that the grant should in any event be limited to three leagues in the Gulf of Mexico, conceived that distance to be justified as an exception to this country's three-mile policy, based on the fact that the Gulf is very largely enclosed by land. 1953 Senate Hearings, pt. II (Exec. Sess.), 1349.

^54  1953 Senate Hearings 319-323, 1056-1057, 1060-1063, 1076 1078, 1080-1082. See also 99 Cong.Rec. 2513, 2569, 3041-3042.

^55  Similar suggestions seem to have been made in the course of consideration of the various 'quitclaim' bills, though never fully developed. See 92 Cong.Rec. 9518 (remarks of Senator Connally); 1953 Senate Hearings 316-317 (statement of John J. Real); 99 Cong.Rec. 3037 (remarks of Senators Gore and Anderson); id., 3265 (remarks of Senators Morse and Hill); id., 3270 (remarks of Senator Hill). See also 1953 Senate Hearings 1078 (remarks of Senator Daniel). In this Court the Government has undertaken to support its position respecting this Nation's adherence to the three-mile limit by a letter from the Secretary of State summarizing historical Executive policy in that regard. In our view of the issues in this case we do not reach the Government's contention that the Secretary's letter would be conclusive upon us as to the existence of that policy.

^56  See Mouton, The Continental Shelf 183-192 (1952 ed.).

^57  See 1951 Senate Hearings 511.

^58  See United States v. State of California, supra, 332 U.S. at page 33, 67 S.Ct. at page 1665.

^59  See 1953 Senate Hearings 1074-1075.

^60  For example, the United States has long claimed the right to exercise jurisdiction over domestic and foreign vessels beyond the three-mile limit for purposes of customs control, 1 Stat. 145, 164, 648, 668; Anti-Smuggling Act of Aug. 5, 1935, 49 Stat. 517, 19 U.S.C. §§ 1701-1711, 19 U.S.C.A. §§ 1701-1711, and for defense purposes, 62 Stat. 799, 18 U.S.C. § 2152, 18 U.S.C.A. § 2152, and this practice is recognized by international law. See 1953 Senate Hearings 1087-1088; American Law Institute, Restatement of the Foreign Relations Law of the United States (Tentative Draft No. 2, May 8, 1958), §§ 8(c), 21.

^61  The boundaries of Texas were described in full by the Act as follows:

'That from and after the passage of this act, the civil and political jurisdiction of this republic be, and is hereby declared to extend to the following boundaries, to wit: beginning at the mouth of the Sabine river, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande, thence up the principal stream of said river to its source, thence due north to the forty-second degree of north latitude, thence along the boundary line as defined in the treaty between the United States and Spain, to the beginning: and that the president be, and is hereby authorized and required to open a negotiation with the government of the United States of America, so soon as in his opinion the public interest requires it, to ascertain and define the boundary line as agreed upon in said treaty.'

^62  On March 1, the Senate resolved that recognition of Texas would be expedient and proper, Cong.Globe, 24th Cong., 2d Sess. 83, 270. A Charge d'Affaires to be sent there was appointed by the President on March 3, 4 S.Exec.J. 631, and confirmed by the Senate on March 7, 5 id., 17.

^63  8 Stat. 511.

^64  S.Doc. No. 341, 28th Cong., 1st Sess. 10; Cong.Globe, 28th Cong., 1st Sess. 652.

^65  5 Stat. 797.

^66  9 Stat. 108.

^67  Texas Const., 1845, Art. Thirteenth, § 2, 2 Gammel, Laws of Texas, at 1299.

^68  8 Stat. 200.

^69  13 Cong.Deb., 24th Cong., 2d Sess., Pt. II, at 229.

^70  See, e.g., Cong.Globe, 28th Cong., 1st Sess., App. 540; id., at 697. The Rio Grande was also sometimes called the Rio Bravo, Rio Bravo del Norte, or Rio Del Norte. We shall refer to it throughout as the Rio Grande.

^71  8 Stat. 252.

^72  See Cong.Globe, 28th Cong., 1st Sess., App. 486, 697.

^73  In 1825 and 1827, President Adams and his Secretary of State, Henry Clay, made overtures to Mexico for the acquisition of Texas. See Justin H. Smith, The Annexation of Texas, 8; Cong.Globe, 28th Cong., 1st Sess., App. 698, 768. Again in 1829 and 1835, President Jackson made similar overtures. Smith, op. cit., supra, at 9; Cong.Globe, 28th Cong., 1st Sess., App. 698. It seems that the Rio Grande was not always sought as the boundary, but that on at least one occasion, Jackson was willing to stop at the center of the desert between the Nueces and the Rio Grande.

^74  See 4 Miller, Treaties and Other International Acts of the United States of America (1934), 139; Justin H. Smith, The Annexation of Texas 1, 7, 20; Cong.Globe, 28th Cong., 1st Sess., App. 697; 1 Garrison, Diplomatic Correspondence of the Republic of Texas, 127, 132-133, H.R.Doc. No. 1282, 60th Cong., 2d Sess. 127, 132-133; letter from Messrs. Van Zandt and Henderson to Secretary of State Calhoun, Apr. 15, 1844, S.Doc. No. 341, 28th Cong., 1st Sess. 13.

^75  S.Doc. No. 341, 28th Cong., 1st Sess. 10.

^76  Speech of Senator Benton of Missouri, Cong.Globe, 28th Cong., 1st Sess., App. 474; Speech of Senator Jarnagin of Tennessee, id., at 685. The contested portions of Texas' claim were the area between the Nueces and Rio Grande Rivers on the southwest, and the area bounded by the upper portion of the Rio Grande in the northwest, which is now part of New Mexico. See diagram at 80 S.Ct. 998.

^77  Speech of Senator Walker of Mississippi, Cong.Globe, 28th Cong., 1st Sess., App. 548; speech of Senator McDuffie of South Carolina, id., at 529; speech of Senator Breese of Illinois, id., at 540; speech of Senator Buchanan of Pennsylvania, id., at 726; speech of Senator Woodbury of New Hampshire, id., at 768.

^78  S.Doc. No. 341, 28th Cong., 1st Sess., 53, 54.

^79  Id., at 55-57.

^80  Cong.Globe, 28th Cong., 1st Sess., App. 548.

^81  Id., at 540.

^82  Id., at 768, 726.

^83  Opponents of the proposals objected that since the consent of a foreign nation was required, the object could be accomplished only by an exercise of the treaty-making power, which would bring Texas in as a territory. See, e.g., Cong.Globe, 28th Cong., 2d Sess., App. 367. Supporters of the Resolutions insisted that the express constitutional power of Congress to admit new States on prescribed terms extended to the admission of foreign states as well as of territory already belonging to the United States. See, e.g., id., at 406-407. The measure as finally passed represented a compromise, the Senate having added a § 3, which authorized an alternative procedure to be pursued by the President, at his election, under the treaty-making power. See Cong.Globe, 28th Cong., 2d Sess. 359, 360, 362-363. President Polk elected not to use that power.

^84  See, e.g., speech of Senator Ashley of Arkansas, Cong.Globe, 28th Cong., 2d Sess., App. 288:

'(T)he present boundaries of Texas I learn from Judge Ellis, the president of the convention that formed the constitution of Texas, and also a member of the first legislature under that constitution, were fixed as they now are, solely and professedly with a view of having a large margin in the negotiation with Mexico, and not with the expectation of retaining them as they now exist in their statute book.' (Emphasis in original.)

See also speech of Representative Brinkerhoff of Ohio, Cong.Globe, 28th Cong., 2d Sess. 346-347. Significantly, the House of Representatives on Jan. 16, 1845, passed a Resolution calling on the President to communicate any information he might possess on the territory within which the authority and jurisdiction of the Republic of Texas was recognized by its inhabitants. Id., at 147.

^85  Speech of Senator McDuffie of South Carolina, Cong.Globe, 28th Cong., 1st Sess., App. 530: '(T)he treaty neither does convey, nor is intended to convey, one solitary square foot of land which does not rightfully belong to Texas.' (Emphasis added.) Speech of Senator Walker of Mississippi, id., at 548: '(W)hen (a nation) is ceded by name, that cession extends only to the country embraced within its lawful boundaries. If, then, the Del Norte * * * be the proper boundary, then it is and ought to be included.' (Emphasis added.) See also Speech of Senator Buchanan of Pennsylvania, id., at 726; speech of Senator Breese of Illinois, id., at 540.

^86  Representative Rhett of South Carolina proposed that 'the sense of the * * * (House) be taken on the first number in the series of resolutions, which simply declared that Texas should be annexed to the United States.' He did not 'feel very scrupulous as to the particular means, provided Texas was got; and have it they would.' Cong.Globe, 28th Cong., 2d Sess., App. 55. See also remarks of Representative Ingersoll, Chairman of the Committee on Foreign Affairs, which had reported on the subject of annexation, objecting to this procedure, ibid., and those of Senator Dayton of New Jersey, id., at 387.

^87  The bills introduced included the following variations in treatment of the boundary question:

'That the republic of Texas * * * be received and admitted * * *. That the United States be authorized to adjust and settle all questions of boundary which may arise with other governments.' (Offered by Senator Ashley of Arkansas, Cong.Globe, 28th Cong., 2d Sess., App., at 287-288.)

'The republic of Texas * * * cedes to the United States all the territories of Texas * * *.' (Reported by Representative Ingersoll as Chairman of the Committee on Foreign Affairs, Cong.Globe, 28th Cong., 2d Sess., at 191.)

'(T)he territory now known as the republic of Texas be, and the same is hereby, annexed to, and made a portion of, the territory of the United States. * * * That commissioners shall hereafter be appointed, who shall establish the boundaries * * *.' (Offered by Representative Weller of Ohio, id., at 192.)

'That the Congress both consent that the territory rightfully included within the limits of Texas be erected into a new State * * *. That said State be formed subject to the adjustment, by the government of the United States, of all questions of boundary that may arise with other governments.' (Offered by Representative Douglass of Illinois, id., at 192.)

'That the Congress doth consent that the territory known as the republic of Texas, and rightfully belonging to the same, may be erected into a new State * * *. That the President of the United States, by and with the advice and consent of the Senate, is hereby authorized to adjust the settle all questions relating to the boundaries of said territory, which may arise with other governments.' (Offered by Representative Burke of New Hampshire, ibid.)

There were also several proposals to carve a State out of only part of the Texan territory, with assigned territorial boundaries, and to admit the remainder as a territory subject to later adjustment of boundaries. Cong.Globe, 28th Cong., 2d Sess. 76 (Representative Tibbatts of Kentucky); 107, 187, App. 304 (Representative Dromgoole of Virginia); 192 (Representative Robinson of New York); 359 (Senator Walker of Mississippi); 362 (Senator Miller of New Jersey).

^88  See, e.g., Cong.Globe, 28th Cong., 2d Sess., App. 387, 400. The maintainable extent of Texas' territory was crucial for two reaons: first, because it had been proposed that the United States assume the Texan debt and that Texas cede all her vacant and unappropriated public lands to be applied in discharge of the debt; second, because it had been proposed that several States be carved out of the Texan territory, those lying south of latitude 36 degrees 30 minutes-the Missouri compromise line-to be slave States, and those to the north to be free States. In this context, it was repeatedly asserted by opponents of the Annexation Resolutions that by their terms, the United States would not get nearly as much public land as the Texas Boundary Act would indicate, nor any land north of the Missouri compromise line, despite the Act's claim of a boundary extending to the 42d parallel. See, e.g., Cong.Globe, 28th Cong., 2d Sess. 191 (Representative McIlvaine of Pennsylvania); id., App. 369-370 (Representative Severance of Maine).

^89  Representative Hudson of Massachusetts said:

'What is the Texas which we propose to take into our embrace? Not simply the old province of Texas-not the Texas which declared itself independent, and whose independence we and several other nations have recognised-not Texas proper, but a large amount of territory which is not included in Texas-territory over which Texas never extended her conquest or jurisdiction, and which is as much a part of Mexico as the city of Mexico itself.' Cong.Globe, 28th Cong., 2d Sess., App. 336.

See also remarks of Representative Rayner of North Carolina, id., 411-412, see note 98, infra; and of Representative Haralson of Georgia. Id., App. 195, see note 97, infra.

^90  Treaty of Amity, Settlement, and Limits, Feb. 22, 1819, 8 Stat. 252; Treaty of Limits, Jan. 12, 1828, 8 Stat. 372.

^91  This compact was alluded to during the debates on the unsuccessful 1844 Treaty as having probably provided the origin of the boundary claims made in the Texas 1836 boundary statute. See Cong.Globe, 28th Cong., 1st Sess., App. 700, 768.

^92  1 Garrison, Diplomatic Correspondence of the Republic of Texas, 127, 132 reprinted as H.R.Doc. No. 1282, 60th Cong., 2d Sess. 127, 132.

^93  On Dec. 22, 1836, President Jackson sent a message to the House regarding possible recognition of Texas. One of the documents accompanying the message was a report dated Aug. 27, 1836, in which the Texas boundary was described as

'extend(ing) from the mouth of the Rio Grande on the east side, up to its head waters; thence on a line due north until it intersects that of the United States, and with that line to the Red river, or the northern boundary of the United States; thence to the Sabine, and along that river to its mouth; and from that point westwardly with the Gulf of Mexico to the Rio Grande.' H.R.Exec.Doc. No. 35, 24th Cong., 2d Sess. 11. (Emphasis added.)

While this report was written before the Texas boundary statute was passed, it again illustrates the lack of concern over a seaward boundary.

^94  Convention Between the United States of America and the Republic of Texas, for marking the boundary between them, Apr. 25, 1838, 8 Stat. 511. The Journal of the Joint Commission which conducted the survey stated:

'(W)e established the point of beginning of the boundary between the United States and the republic of Texas at a mound on the western bank of the junction of the river Sabine with the sea * * *.' S.Doc. No. 199, 27th Cong., 2d Sess. 59.

^95  S.Doc. No. 341, 28th Cong., 1st Sess. 55, 56.

^96  See, e.g., speech of Representative Severance of Maine, Cong.Globe, 28th Cong., 2d Sess., App. 369-370; speech of Representative McIlvain of Pennsylvania, id., at 373.

^97  Representative Haralson of Georgia, speaking to the Joint Resolution, said:

'If it should turn out that, by receiving the entire limits of Texas, as defined in her act, we acquired more territory than we could rightfully hold, having a just regard to the rights of other nations, all that is necessary to be done is to surrender the overplus. The Texian act of Congress, approved December 19, 1836, I have little doubt, defines correctly the boundary of that republic. If not, any imaginable difficulty may be adjusted if you adopt one of these resolutions, which provides for the consent of Texas to our settlement of the boundaries.' Cong.Globe, 28th Cong., 2d Sess., App. 193, 195.

^98  Representative Rayner of North Carolina, speaking to the Joint Resolution, said:

'Texas claims the country on the east of the Del Norte, from its mouth to its source. She has laid down this as her boundary in her constitution. She is to transfer to this government, or retain to herself, all the unappropriated lands within the limits of her republic. She has defined these limits; and it is with Texas, claiming territory as extending to the Del Norte in its whole length, that you propose to make the contract. It may be said that this question of boundary must be left to future negotiation with Mexico. But will not this government, if Texas is now annexed, with her definition of boundary, be precluded from making any concessions to Mexico? Will not any compromise as to boundary be resisted by Texas as a breach of faith towards her? She might say that Texas had defined her own limits; that with Texas, as thus bounded, we had contracted for her admission into the Union; and that this government was bound by every consideration of faith and honor to see that Texas should not be again mutilated. * * *

'Whether this reasoning be founded in justice or not, there is some plausibility in it * * *'. Id., at 410, 411-412.

Similarly Senator Breese of Illinois, speaking to the 1844 Treaty, had said:

'The limits of Texas are to be adjusted hereafter. But we have acknowledged the limits as defined in the act of the Texian Congress of 1836, and as delineated on the map accompanying the documents, as extending to the Del Norte. And why do I say so? Because we did, in 1837, with a full knowledge of these declared boundaries, acknowledge the independence of Texas as a state, with that act of her Congress then, and as now, in full force; and which acknowledgment received the vote of the senator from Missouri. But this is a small matter, and can be readily adjusted with Mexico, should we encroach upon her rights. We get a title to all Texas, rightfully ours in virtue of her sovereignty. We ask no more-no less.

'The senator says that he is for the recovery of (t)he province of Texas-Spanish Texas-the Texas of La Salle. So am I, Mr. President; and for as much more as the 'republic' of Texas can lawfully claim.' Cong.Globe, 28th Cong., 1st Sess., App. 537, 540.

Senator Walker of Mississippi, commenting on the 1844 Treaty, had placed his approval of the Boundary Act on both grounds. Id., at 548-557.

^99  Letter from Andrew J. Donelson to James Buchanan, Apr. 12, 1845, 12 Manning, Diplomatic Correspondence of the United States: Inter-American Affairs, 1831-1860 (1939), 400-401.

^100  The treaty provided as follows:

'The boundary line between the two republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence, westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence, northward, along the western line of New Mexico, until it intersects the first branch of the River Gila; (or if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same;) thence down the middle of the said branch and of the said river, until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean.'

By this treaty, the United States thus not only maintained the Texan claim to the territory between the Nueces and the Rio Grande, but also acquired from Mexico the whole of New Mexico, part of which Texas had claimed by its boundary statute. To settle the

conflict thus created between the United States and Texas to that portion of New Mexico, the United States in 1850 paid Texas $10,000,000 to relinquish its claim to the area, 9 Stat. 446, thereby consummating the final step in the establishment of Texas' disputed land boundaries. See diagram, 363 U.S. at page 65, 80 S.Ct. at page 998.

The Act provided as follows:

'The State of Texas will agree that her boundary on the north shall commence at the point at which the meridian of one hundred degrees west from Greenwich is intersected by the parallel of thirty-six degrees thirty minutes north latitude, and shall run from said point due west to the meridian of one hundred and three degrees west from Greenwich; thence her boundary shall run due south to the thirty-second degree of north latitude; thence on the said parallel of thirty-two degrees of north latitude to the Rio Bravo del Norte, and thence with the channel of said river to the Gulf of Mexico.'

It is suggested that the seaward boundary of Texas was thereby fixed at the edge of the Gulf. But Texas' western boundary south of New Mexico had already been definitively fixed by the Treaty of Guadalupe Hidalgo. 363 U.S. at pages 60-61, 80 S.Ct. at pages 994, 995. Since the Treaty had fully supported Texas' claim to that area, there was nothing to compromise in 1850. By contrast, the portion of the 1848 boundary which encompassed not only eastern New Mexico, to which Texas had a very doubtful claim, but also western New Mexico and California, which it had never claimed, obviously was not pressed against Mexico on Texas' behalf and was not intended to validate its claim to eastern New Mexico. Thus the 1850 Compromise could be concerned only with the latter area. Nothing in United States v. State of Texas, 162 U.S. 1, 16 S.Ct. 725, 40 L.Ed. 867, militates to the contrary. The concluding phrase of the Act, describing the portion of Texas' boundary south of New Mexico was unnecessary to the purposes of the Act and could not, without Texas' consent, affect the seaward boundary previously fixed for it.

^101  Papers of Nicholas P. Trist (Library of Congress 1917), Vol. 33, folio 62071. The quotation is from letter of Secretary of State Buchanan to John Slidell, Nov. 10, 1845. S.Exec.Doc. No. 52, 30th Cong., 1st Sess. 78.

^102  See also 5 Miller, op. cit., supra, at 315, n. 1. While the United States demanded and obtained as a war indemnity a large amount of territory west of Texas' claimed boundaries extending to the Pacific coast, see note 100, supra, that fact never obscured this country's firm contention that as to Texas' southwestern boundary-lying along the Rio Grande from the Gulf to what is now New Mexico-the Texan claim based on its 1836 Boundary Act must be maintained against Mexico.

^103  10 Stat. 1031. It is noteworthy that the boundary commissioners appointed at that time to survey the three-league boundary reported: 'Lieut. Wilkinson, in command of the brig Morris, repaired at the appointed time to the mouth of the river and made soundings * * * to trace the boundary, as the treaty, required, 'three leagues out to sea." 1 Emory, Report on the United States and Mexican Boundary Survey (1857), 58. This is in marked contrast to the notes of the surveyors of the boundary between Texas and the United States established by the 1838 Convention. See note 94, supra.

^104  See the following boundary conventions between the United States and Mexico: July 29, 1882, 22 Stat. 986; Nov. 12, 1884, 24 Stat. 1011; Dec. 5, 1885, 25 Stat. 1390; Feb. 18, 1889, 26 Stat. 1493; Mar. 1, 1889, 26 Stat. 1512; Aug. 24, 1894, 28 Stat. 1213; Oct. 1, 1895, 29 Stat. 841; Nov. 6, 1896, 29 Stat. 857; Oct. 29, 1897, 30 Stat. 1625; Dec. 2, 1898, 30 Stat. 1744; Nov. 21, 1900, 31 Stat. 1936; Mar. 20, 1905, 35 Stat. 1863.

^105  Letter of Secretary of State Buchanan to Mr. Crampton, British Minister, Aug. 19, 1848, Manning, Diplomatic Correspondence of the United States, Inter-American Affairs, 1831 1860, VII, 31-32; Letter from Luis G. Cuevas, Mexican Foreign Minister, to Percy W. Doyle, British Charge d'Affaires in Mexico, photostatic copy of translation in Public Record Office, London, Gov.Br. p. 403.

^106  Foreign Relations of the United States, 1875, Pt. I, 649 650. It is difficult to understand why, if jurisdiction for revenue purposes had been extended by statute to four leagues, the boundary was established only at three leagues if it was drawn solely for that purpose. It is asserted, however, that Mexico concluded a series of treaties with other countries in the latter half of the nineteenth century which established jurisdiction for revenue purposes at three leagues. Treaty between Mexico and China, Art. XI, 1 Laws and Regulations on the Regime of the High Seas (United Nations Legislative Series) 147; Treaty between Mexico and the Dominican Republic, Art. 15, id., at 153, 154; Treaty between Mexico and El Salvador, Art. XXI, id., at 156; Treaty between Mexico and France, Art. 15, id., at 169, 170; Treaty between Mexico and Germany, Art. VIII, id., at 170; Treaty between Mexico and the Netherlands, Art. 6, id., at 171; Treaty between Mexico and Norway and Sweden, Art. VII, id., at 171-172; Treaty between Mexico and the United Kingdom, Art. IV, id., at 172. Only some of those Treaties set the limit at three leagues; others set it at twenty kilometers, which is equivalent to approximately 10.8 nautical miles, or closer to four leagues than to three. In any event, the Mexican Treaties indicate only that Mexico chose to limit the rights she would assert as against other nations, and do not relate to the rights created between it and the United States by the Treaty of Guadalupe Hidalgo.

^107  Letter from Mr. De L. Boal, American Charge d'Affaires an interim at Mexico City, to Senor General Hay, Mexican Minister for Foreign Affairs, June 3, 1936, 99 Cong.Rec. 3623-3624.

In testifying before Congress on the Submerged Lands Act, representatives of the State Department reiterated these various grounds, 1953 Senate Hearings 1056-1057, 1077-1078. See also id., at 321-323, 670; 99 Cong.Rec. 2513-2514, 2569, 2893-2895, 3041 3042. Their concern was to avert a congressional determination that a three-league territorial boundary had been fixed for Texas which might be embarrassing to this country in its foreign relations. However, as we have pointed out, 363 U.S. at pages 30 36, 80 S.Ct. at pages 979-982, there is no necessary conflict between the existence of a three-league territorial boundary for domestic purposes and the maintenance of the Executive's policy on the limit to which this country will assert rights in the marginal seas as against other nations. Despite the State Department's contentions with respect to the Treaty, Congress clearly left that question, like all other matters bearing on the determination of boundaries, an open question to be judicially resolved.

^108  In precise modern usage, the term 'shore' denotes the line of low-water mark along the mainland, while the term 'coast' denotes

the line of the shore plus the line where inland waters meet the open sea. It is obvious that the term 'coast' was used in Louisiana's Act of Admission in a nontechnical sense to denote what is actually the shore. The Acts admitting both Mississippi and Alabama contain similar provisions for the inclusion of all islands within six leagues of the shore, despite the fact that Great Britain had proclaimed those areas in 1763 to include all islands within six leagues of the 'sea coast.' And, in State of Louisiana v. State of Mississippi, 202 U.S. 1, 47, 26 S.Ct. 408, 420, 50 L.Ed. 913, this Court held that the 'coast' referred to in Louisiana's Act of Admission was the St. Bernard marshes on the mainland and not the Chandeleur Islands, which might be thought to be the seaward limit of inland waters.

The Government concedes that all the islands which are within three leagues of Louisiana's shore and therefore belong to it under the terms of its Act of Admission, happen to be so situated that the waters between them and the mainland are sufficiently enclosed to constitute inland waters. Thus, Louisiana is entitled to the lands beneath those waters quite apart from the affirmative grant of the Submerged Lands Act, under the rule of Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565. Furthermore, since the islands enclose inland waters, a line drawn around those islands and the intervening waters would constitute the 'coast' of Louisiana within the definition of the Submerged Lands Act. Since that Act confirms to all States rights in submerged lands three miles from their coasts, the Government concedes that Louisiana would be entitled not only to the inland waters enclosed by the islands, but to an additional three miles beyond those islands as well. We do not intend, however, in passing on these motions, to settle the location of the coastline of Louisiana or that of any other State.

^109  8 Stat. 80, 82.

^110  Circular sent by Jefferson to United States Attorneys, ms. in National Archives, Record Group 59.

^111  Ibid.; see also letter from Jefferson to George Hammond, British Minister, Nov. 8, 1793; H.Exec.Doc.No.324, 42d Cong., 2d Sess. 553; letter from Jefferson to Edmond Genet, French Minister, American State Papers, 1 Foreign Relations 183.

^112  While, as we have observed, Congress may fix state boundaries independently of Executive policy on the extent of territorial waters, subject to any limitations imposed by that policy, the Treaty of Paris does not present such a situation. It represents an exercise of purely Executive power (prior, in fact, to the establishment of the Federal Constitution) in setting a national boundary with another nation.

^113  Ga.Code Ann. § 15-101, derived from Act 1788, Cobb, 150; Watkins' Dig. 713-762, as amended, Acts 1916, p. 29.

^114  '* * * jusq u'a son embouchure dans la mer ou golfe de Mexique, environ les 27 Degrez d'd le vation du pole septentrional * * *.' 2 Margry, De couvertes et E tablissements des Francais dans L'Ouest et dans le Sud de L'Ame rique Septentrionale (1877), 191-192.

^115  2 Margry, op. cit., supra, at 186, 190-191.

^116  Fragment of a letter of La Salle, 2 Margry, op. cit., supra, at 199 (The Mississippi runs as far as the 27th degree, where it discharges into the sea); Letters Patent issued on Sept. 14, 1712, by Louis XIV to his Secretary, Antoine Crozat, for exclusive trading in Louisiana, in Greenhow, Memoir, Historical and Political, on the Northwest Coast of North America, S.Doc.No.174, 26th Cong., 1st Sess. 150 (Louisiana extends along the Mississippi 'from the seacoast to the Illinois country'); Definitive Treaty of Peace between Great Britain, Spain, and France, signed at Paris, Feb. 10, 1763, Art. VII, 15 Parliamentary History of England 1291, 1296 (domains of Britain and France separated by a line drawn along the middle of the river Iberville, and lakes Maurepas and Pontchartrain 'to the sea').

^117  13 Cong.Deb., 24th Cong., 2d Sess., pt. II, App. 226.

^118  Id., at 229.

^119  Treaty of Utrecht, 1713, between Great Britain and France, 17 Journal of the House of Commons 329; Preliminary Treaty of Peace between Great Britain, Spain, and France, Nov. 3, 1762, 15 Parliamentary History of England 1241, 1243; Definitive Treaty of Peace between Great Britain, Spain, and France, Feb. 10, 1763, 15 Parliamentary History of England 1291, 1295; Definitive Treaty of Peace and Friendship between Britain and France, at Versailles, Sept. 3, 1783, 39 Journal of the House of Commons, 718, 719.

^120  Convention between Great Britain and Spain, at The Escurial, Oct. 28, 1790, 46 Journal of the House of Commons 30.

^121  Estevan de Ferrater, Codigo de Derecho Internacional (Barcelona 1846), Vol. I, p. 488.

^122  Ernest Nys, Le Droit International, Vol. I, p. 499.

^123  Certain correspondence between the United States and Spain involving a dispute over the eastern and western limits of Louisiana also indicates that Spain believed the territory ended at the Gulf of Mexico. Letter from Pedro Cevallos, Spanish Foreign Minister, to Charles Pinckney and James Monroe, United States Envoys, Apr. 13, 1805, American State Papers, 2 Foreign Relations 660, 662; letter from Luis de Onis, Spanish Ambassador, to John Quincy Adams, United States Secretary of State, Dec. 29, 1817, American State Papers, 4 Foreign Relations 452, 453; letter from de Onis to Adams, Mar. 23, 1818, id., at 480, 484.

^124  8 Stat. 200, 202.

^125  Treaty of Amity, Settlement, and Limits (between the United States and Spain), Feb. 22, 1819, 8 Stat. 252; Treaty of Limits (between the United States and Mexico), Jan. 12, 1828, 8 Stat. 372; Convention Between the United States of America and the Republic of Texas, for marking the boundary between them, Apr. 25, 1838, 8 Stat. 511.

^126  See note 94, supra.

^127  Among the acts alleged were 'the passing and enforcing of laws regulating fishing, trawling and dredging of said submerged lands, the granting of leases for the cultivation, propagation and taking of oysters, fish and shrimp, for the dredging and removal of sand, gravel and shells, and for the leasing and development of said lands for oil, gas and other minerals.' The answer further alleged that prior to the discovery of oil and gas under said lands, the United States had never claimed any interest in them, and that it had recognized Louisiana's title thereto when, on numerous occasions, it 'requested the Chief Executive of the State to secure the passage of laws which would permit the federal government to acquire sites therein for game and fish preserves and for light houses, jetties and other aids to navigation.'

^128  15 Parliamentary History of England 1291, 1296.

^129  2 White, New Collection of Laws, Charters and Local Ordinances of Great Britain, France and Spain (1839), 292, 293.

^130  39 Journal of the House of Commons 722, 723.

^131  1 Richardson, Messages and Papers of the Presidents 465.

^132  2 Stat. 734.

^133  3 Stat. 348.

^134  3 Stat. 472.

^135  We express no opinion at this time on the location of Mississippi's coastline. See note 108, ante.

^136  2 Stat. 734.

^137  3 Stat. 608.

^138  3 Stat. 489, 490.

^139  We express no opinion at this time on the location of Alabama's coastline. See note 108, ante.

^140  On June 5, 1950, the date of this Court's decision in the Louisiana and Texas cases, all coastal States were put on notice that the United States was possessed of paramount rights in submerged lands lying seaward of their respective coasts. The Submerged Lands Act, passed in 1953, by which parts of those lands were relinquished to the States, also forgave any monetary claims arising out of the States' prior use of the lands so relinquished. But the United States remains entitled to an accounting for all sums derived since June 5, 1950, from lands not so relinquished.

Mississippi contends that it is not liable for an accounting, since it was never party to a suit decreeing the United States' rights in offshore lands. However, principles announced in the 1950 Louisiana and Texas cases are plainly applicable to all coastal States, and Mississippi was put on notice by the decrees in those cases. A fortiori, the similar contention of Louisiana, the defendant in the 1950 Louisiana case, must be overruled.

^141  In light of these conclusions we do not reach the question whether Alabama's cross bill constitutes an 'unconsented' suit against the United States.

^142  The same disposition is made of the similar averment in Alabama's answer. Texas' motion for similar relief and for a severance is rendered moot by our decision as to it.

^143  The alternative motion of Louisiana, contained in its answer to the original complaint herein, to transfer the case as to it to the United States District Court in Louisiana is denied for the same reasons, and on the further ground that we have already determined that the issues as to all the defendant States should be heard together in this Court. 354 U.S. 515, 77 S.Ct. 1373, 1 L.Ed.2d 1525.


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