federalism, established by the Revolution as applicable to the land areas embraced within the Colonies, was extended to Territories. The United States acquired its original territory-not as owner or proprietor-but as trustee, upoù the condition that, as soon as practicable, the lands would be carved into States to be admitted into the Union on equal political footing.

These facts were, of course, known at the time of the Federal convention. Inasmuch as the settlement of future land disputes between the States was regarded of considerable importance, Mr. Carrol of Maryland moved that a provision be inserted for the settlement of such matters by the Supreme Court) Gouverneur Morris held this to be unnecessary, since other provisions vested the Court with the necesssary jurisdiction. However, in view of the doubtiu: 20thority of the Congress of the Confederacy to accept the land cessions from t States, it was considered necessary to provide specific authorization on the matter for the new Congress." Morris therefore proposed article IV, section 3, in its present form, which was adopted with only Maryland dissenting."

Considered in this context, the scope of the power conferred upon the Congress to make needful rules and regulations respecting "territory or other property belonging to the United States," as visioned by the framers, becomes clear. The term "territory" refers to lands already ceded by the land-claiming States to the General Government. The expression "other property" refers to lands of territory that might be subsequently ceded or acquired by judicial controversy. That this is a reasonable conclusion is verified by the fact that only land clas were under discussion. It is also consistent with the position taken by Marylat... which refused to join the confederacy until the State cessions were promised Simply stated, the provision was understood to be one for the regulation by the Congress of whatever additional property and lands might come into the possession of United States as a result of further cessions by the States and by adjudication of controversies before the Supreme Court." subject, however, to the trusteeship contemplated by the “equal footing" compact.

Eminent lawyers of the era understood it to be the law, as well as the policy of the United States, that territory so acquired should be held by the Federa Government as trustee, and created into new States when the population of the area justified it. Subsequent to the adoption of the Constitution, it was recog. nized that the United States had the right to acquire territory by other meals. such as by treaty (purchase) conquest, or discovery. But the same concept er trusteeship was held to apply to lands obtained through these methods as applied to lands ceded by the States. This concept of trusteeship was considered to b☛ of such significance that it was incorporated into the provisions of treaties such as the Louisiana Purchase of 1803, the treaty with Spain of 1819, and the Mexical

"The particular clause offered by Mr. Carrol would have added: "Provided, nevertheless, that nothing in this constitution shall be construed to affect the claim of the United States to vacant lands ceded to them by the treaty of peace."

"This." he said, "might be understood as relating to lands not claimed by any particula” states, but he had in view also some of the claims of particular states.

After some debate, in which James Wilson and James Madison said that the matter of land claims would be settled by the Supreme Court, Carrol withdrew his motion and madthe following motion:

"Nothing in this constitution shall be construed to alter the claims of the United States or of the individual states in the western territory, but all such claims shall be examined into and decided upon by the Supreme Court of the United States."

Luther Martin insisted that this was necessary to eliminate all doubt as to the method of settling land claims. 2 Farrand, Records of the Federal Convention 464, 466 (1911) In Scott V. Sanford (19 How. 393 (U. S. 1856)), Chief Justice Taney recognized this lack of authority. He said, "The Congress of the Confederation had no power to acup

these cessions."

2 Farrand, op. cit., supra, note 77 at 466.

In 1787 all of the States had not ceded their claims to territory to the United States The cession of South Carolina was not completed until 1787; that of North Carolina antil February 1790, that of Connecticut to the western reserve until 1800, and that of Georg» until 1802. Ibid.

There can be no question that it was the general intention at the time that the Cop stitution was adopted that all the territory then under the sovereignty of the United States and not included within the limits of any one of the then several States should ultimatek be divided up and admitted as States into the Union." 1 Willoughby, The Constitutior Law of the United States, 413 (2d ed., 1929). At 414, 415 Willoughby says that Jefferso Madison, Monroe, John Quincy Adams, Webster, Calhoun, and Clay, as well as others, sp ported this view.

81a 1 Willoughby, op. cit., supra, note 81, at 407, 426. See also Gardner, Our Right to Acquire and Hold Foreign Territory, passim; United States v. Huckabee (16 Wall. 414, 454 (U. S. 1873)).

82

83

cession of 1848, whereby the western areas were acquired. Moreover it has been unequivocably announced in a series of leading judicial decisions. In Shively v. Bowlby," the Supreme Court said briefly : "The territories acquired by Congress, whether by deed of cession from the original states, or by treaty with a foreign country, are held with the object, as soon as their population and condition justify it, of being admitted into the Union as states, upon an equal footing wih the original states in all respects; The same rule was held to apply to tidelands, or lands beneath navigable waters, in Weber v. Board of Harbor Commissioners. Here the Supreme Court declared:

85

* *

"Although the title to the soil under the tidewaters of the bay was acquired by the United States by cession from Mexico, equally with the title of the upland, they held it only in trust for the future State. Upon the admission of California into the Union upon equal footing with the original States, absolute property in and dominion and sovereignty over all soils under the tidewaters within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several States, the regulation of which was vested in the General Government." The development of the country has been in accordance with this principle. All Territories, other than Alaska, within our continental limits have been carved into States which have been admitted into the Union on the basis of political equality. While some Territories, such as Alaska, Hawaii, and Puerto Rico, have not yet been admitted as States, bills providing statehood for Alaska and Hawaii are presently being considered."

86

It appears therefore that the Federal Government has not followed the policy of holding the vast land areas of the continent as subject Territories. On the other hand, in keeping with the theory of our federalism, and with the limitations on Federal power contained in the Constitution, with exceptions to be noted, the Federal Government, by the rapid formation of States, has recognized the limited nature of its trusteeship. It is this process which extends federalism to the

82 The treaty of 1803 for the cession of Louisiana, 8 Stat. 202, provided :

"The inhabitants of the ceded territory shall be incorporated into the Union of the United States and admitted as soon as possible according to the principles of the Federal Constitution."

The treaty of 1819 with Spain, 8 Stat. 256, provided: "The inhabitants of the Territories

shall be incorporated in the Union of the United States as soon as it may be consistent with the principles of the Federal Constitution." The treaty of 1848 with Mexico, 9 Stat. 930, provided: "The Mexicans in the Territories aforesaid shall *#* * 串 be incorporated in the Union of the United States and be admitted at the proper time (to be judged by the Congress of the United States) to the enjoyment of all the rights of citizens of the United

States

*

1 Willoughby, op. cit., supra, note 81, at 414, says:

"In the provisions of all these several treaties there is thus to be recognized the presence of the idea in the minds of those who framed and ratified them that the Territories thus acquired were to be incorporated as integral elements in the United States and ultimately to be erected as States

Pollard v. Hagan (3 How. 212 (U. S. 1845)); Weber v. Board of Harbor Commissioners (18 Wall. 57 (U. S. 1873)); Shively v. Bowlby (152 U. S. 1 (1893)); Knight v. United Land. Ass'n (142 U. S. 161 (1891)). See Tallman, The Public Domain, 20 Texas Law Review 55, 79 (1941); Rottschaefer, Handbook on American Constitutional Law 119 (1939). Rottschaefer points out that conditions on admission may not be imposed which would place the State "in a political position in the Union inferior to that occupied by the other States"; however, agreements or restrictions with respect to control of public lands do not relate to political position, hence do not impair or offend the doctrine of "equal footing," which means political equality. The act of February 22, 1889, creating North Dakota, South Dakota, Montana, and Washington is quoted in part in 33 Harvard Law Review 410-411 (1920). It appears that as part of the terms of admission, certain areas of the nonprivate lands held as territory were granted to those States upon restrictions as to sales prices and the use of the funds. A provision is also quoted in that Review from the Constitution of North Dakota which constituted an acceptance of the grant, being in the nature of a trust. Agreements of that naure, made in connection with the admission of a State, or after admission, involve no violation of equal footing, even though they contain restrictions or because the grants and restrictions applicable to one State or group of States differ from those applicable to other States. See note 88, infra.

84 Note 83, supra.

Note 83. supra.

H. R. 49. being a redraft of some twelve earlier bills, providing statehood for Hawaii, passed the House of Representatives at the first session of the Eightieth Congress and is now pending for Senate consideration. H. R. 206 and H. R. 1808 providing statehood for Alaska are both pending before the Eightieth Congress, second session. S. 59. providing statehood for Puerto Rico, was introduced at the first session of the Eightieth Congress. 73335-48-84

Territories and makes the Congress a nursery of States rather than the mother of domestic imperialism. In final analysis this is but an expression of the principle that the States and not the Federal Government are to be the landowning and land-controlling units.

FEDERAL RETENTION AND CONTROL OF SEAWARD AREAS WOULD BE CONTRARY TO OUB POLITICAL ORGANIZATION AND POLICY

Regardless of what may have been the intention of the framers, it must be recognized that the United States has held and at present holds relatively large land areas within the States. Commencing with the cessions made by the seven land-claiming States, our major territorial acquisitions consisted of the Louisiana Purchase in 1803, the acquisition of Florida in 1819, the annexation of Texas in 1845, the Oregon Convention in 1846, the Mexican cession in 1848, the Gadsden Purchase in 1853, and the purchase of Alaska in 1867. By the middle of the nineteenth century, the United States had come into possession of over a billion and a half acres of so-called public domain.

87

As has been said, the area within the continental United States (except Alaska) has been erected into States which have been admitted into the Union on the basis of political equality with existing States. Such equality referred in no way to the size and resources of the States, since obviously no two States had natural equality in these respects. Moreover, substantial differences or inequalities resulted from agreements between the United States and the prospective States evidenced by the terms by which such States were admitted to the Union. The extreme case on the one hand is that of Texas. As an independent Republic, Texas agreed to pay its own public debt and retained all of its nonprivate lands and their resources, ceding nothing to the United States except forts, barracks, and similar defense properties. On the other hand are other States, notably the Western States, which either disclaimed all rights in nonprivate lands within their borders or agreed not to interfere with the property of the United States in such lands.59 In these latter cases, the United States came to be released from its original trusteeship and came to own large land areas within the States for nongovernmental purposes.

Even so, Federal trusteeship of a modified character was substituted. The Federal Government, in its treatment of such land areas, has recognized the

87 Lands of the Free, 18 (U. S. Department of the Interior, 1940).

When the

88 It is not always recognized that even political equality of States was not specifically provided for in the Constitution, although it has been held to be implied by the language of art. IV, sec. 3. The history of art. IV, sec. 3, in this respect is interesting. Federal convention turned over its 23 resolutions to the Committee of Detail from which the first draft was made, art. XXVII would have included a provision providing "that new States shall be admitted on the same terms as the original States." Objection was made by Gouverneur Morris in the form of a motion to delete so that Congress should not be bound to admit new States upon equal terms with others. In support of the motion, Mr. Langdon said he did not "know but circumstances might arise which would render it inconvenient to admit new States on terms of equality." Mr. Williams was "for leaving the Legislature free." The motion to delete was accepted and art. IV, sec. 3, came to be written in its present form. Thus constitutional equality of States was rejected and congressional supremacy-involving the right to grant equality or inequality-was established. 2 Farrand, op. cit., supra, note 77 at 188. However it has been held that congressional supremacy does not permit Congress to provide for political inequality. 1 Willoughby, op. cit. supra, note 81 at 310-315. See note 89, infra.

See note 6, supra, for information as to admission of Texas. The acts providing for the admission of Utah, 28 Stat. 107 (1894), as amended, 45 Stat. 1252 (1929), and New Mexico, 36 Stat. 557 (1910), contained provisions under which the people of such States "forever disclaim all right and title to the unappropriated and ungranted public lands lying within their boundaries. The act of September 9, 1850, 9 Stat. 452, admitting Callfornia, provides: the said State of California is admitted into the Union on the express condi tion that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired. *

there:

See note 83, supra, for information as to North Dakota, South Dakota, Montana, and Washington, and Van Brocklin v. Tennessee (117 U. S. 151 (1886)) for a summary of like provisions under which other States entered the Union. See also Stearns v. Minnesota (179 U. S. 223 (1900)), establishing the validity of all such agreements. The Court said a mere agreement [between a State and the United States] in reference to property involves no question of equality of status, but only of the power of a State to deal with the Nation in reference to such property. That a State and the Nation are competent to enter into an agreement of such a nature has been affirmed in past decisions of this court, and that they have been frequently made in the admission of new States, as well as subsequently thereto is a matter of history.

Id. at 245.

tentative nature and character of its holdings. The general policy of the Government has been to dispose of nonprivate lands within the States. Originally, large areas were sold under a series of homesteading laws; extensive grants were made to the railroads; and great areas were set aside for Indian reservations. Later followed a period in which enormous areas were set aside for national forests, national parks, and grazing districts." The policy of disposal continued until February 8, 1935, when by Executive order President Roosevelt withdrew all remaining public lands from further disposal." The general policy of disposal has not since been renewed. It is estimated that by 1935 the United States had divested itself of more than 75 percent of the public domain.92

Two observations may be made in regard to the retention by the Federal Government of enormous areas within a State for nongovernmental purposes. First, the practice is in disregard of constitutional intentions. Second, the States consented to the retention by the Government, or to its right of disposal, of nonprivate lands within their borders as one of the conditions for admission into the Union.93 Obviously such retention by the Government of lands within the States forms no basis upon which the Federal Government can assert title to the seaward areas under discussion, or upon which it should maintain paramount rights to such areas.

Federal holding of enormous areas within the States which are not to be used for governmental purposes has created many of the irritations, complications, and conflicts in sovereignty which the framers of the Constitution sought to avoid. They undertook to provide against these eventualities not only by the strict limitations imposed under article I, section 8, clause 17, but also by declaring in article IV, section 3, that no State should be formed within a State. Moreover, the policy by which the Federal Government has continued as an extensive landowner has abridged the powers of the States to maintain their social institutions on an efficient basis. This is particularly so in the Western States which are deprived of income from taxation of Government-owned lands and of wealth which might have resulted if the lands had been privately owned. The Congress has recognized these equities in numerous instances by grants-in-aid, appropriations, and other Federal help, and by legislation providing for certain percentages of the income from national

90 Tallman, The Public Domain, 20 Texas Law Review 55 (1941). Tallman discusses the various acts of Congress relating to the disposal of the public domain. 91 Executive Order No. 9526, 10 Fed. Reg. 2423 (1945), U. S. Code Cong. Service 1222 (1945).

This information is from the report sometimes referred to as the Byrd report, entitled "Federal Ownership of Real Estate," prepared under date of November 18, 1943, as Additional Report of the Joint Committee on Reduction of Nonessential Federal Expenditures, Congress of the United States, pursuant to sec. 601 of the Revenue Act of 1941. The report appears to have been the first comprehensive study of the Federal ownership of real estate. It shows, in addition, that from 1935 to 1943 Federal ownership of lands within the States increased from about 18 percent to about 20 percent as a result of purchases for national defense, flood control, land reclamation, and the like, and by virtue of gifts from the States for forest conservation, national parks, conservation of fish and bird life, and similar public purposes.

The interim report of September 14, 1944, of the Committee on Public Lands, House of Representatives, 78th Cong., 2d sess. (1944), states:

"The Federal Government and its various bureaus now own or control parks, forests, Indian reservations, cattle driveways, grazing areas, public domain, mineral lands, recreational areas, cemeteries, customhouses, post offices, housing projects, vegetable- and fruitprocessing plants, nurseries, electrical plants, mines, oil properties, war factories of various kinds, shipyards, docks, wharfs, lakes, dams, power sites, water-front properties, hotels, and hospitals. The U. S. Government today is the greatest owner of real estate in the entire Nation. More than 24 percent of the land area in continental United States is owned by the Federal Government and its various agencies. When we include Territories in this figure, the Federal Government owns 36 percent of the land area."

The World Almanac (1947), at p. 241, shows that in 1945 the Federal Government owned 24.2 percent of the land area of the continental United States, excluding Alaska. The Petroleum Data Book (1947) D-118 gives a table, as of June 30, 1944, showing Federal ownership in the various States and the names of the administrative agencies. It appears that the United States owns 87 percent of Nevada, 64 percent of Idaho, 73 percent of Arizona, 72 percent of Utah, 53 percent of Oregon, 51 percent of Wyoming, 46 percent of California, 44 percent of New Mexico, 38 percent of Colorado, 35 percent of Montana, and 35 percent of Washington. See also Emery, Our Expanding Public Lands, the Independent Monthly 30 (1948).

It was urged that the United States could not acquire and retain lands in the several States in the capacity of a proprietor. This argument was based on the contention that art. IV. sec. 3, authorizing Congress to make needful rules and regulations with respect to Territories and other property, related only to the period before statehood. The courts held otherwise, sustaining the right of the United States to own, sell, or to retain lands within a State. Ashwander v. Tennessee Valley Authority (297 U. S. 288 (1936)); Light v. United States (220 U. S. 523 (1911)); Van Brocklin v. Tennessee (117 U. S. 151. 167 (1886)).

forests, Federal leases, and from other sources to be remitted to the State from which the income arises."

The difficulties and conflicts just mentioned, as well as the practice of previding Federal help, well illustrate the wisdom of the framers of the Constitution in providing that the Federal Government should not become an owner of land within the States, or flanking the States, for other than governmental purposes. They also disclose that no sound basis exists for extending Federa ownership and control to additional areas such as those involved in the Con tinental Shelf. There is no conceivable governmental purpose to which these lands could be devoted, and there is no function to be served by such a course that could not be accomplished under State ownership and control.

Nor does the existence of the treaty-making power or the existence of inherent powers require that the Federal Government should become owner of seaward areas, especially if located within State boundaries.5 The Californi case does not go this far. Likewise, United States v. Wright Export Corporation, 96 though it announces the doctrine of inherent powers of the Federal Government in the field of foreign relations does not logically support the contention that the Federal Government has paramount rights, of the dignity of title, over lands which are or may be the subject of foreign relations, even if such lands are beyond the boundaries of the States. In the first place, the doctrine of inherent powers, once rejected by the Court, is obviously not included in the grant of either legislative or executive powers." In any event. the doctrine, recognized in connection with foreign relations, has never been here tofore employed to justify the acquisition of State or privately owned property except by condemnation. And where condemnation has been employed, the property acquired has been reasonably necessary in carrying out a governmenta. function.

The nature of our Federal system under the Constitution contemplates both States and a Federal Government performing their respective functions. It also contemplates an indestructible union of indestructible States." Even though

94 Information as to grants-in-aid, appropriations, and other Federal help to the States was the subject of a report of the Federal Real Estate Board appointed by Presiden Roosevelt. This report, entitled "Federal Contributions to States and Local Governmenta. Units With Respect to Federally Owned Real Estate," was submitted to the House of Repre sentatives by message of the President, was printed as H. Doc. No. 216, 78th Cong., 1st sess. (1940), and was referred to the Committee on Public Lands on June 1, 1933. The report discloses some 23 instances of congressional provisions authorizing taxation of Federal property (p. 39, appendix 3), some 17 provisions authorizing contributions to State funds from revenues from Government properties within the States, based on specified percent of receipts (p. 39. appendix 4); and some 6 provisions authorizing co tributions from Federal revenues by agreement or other arrangement. Many of the acts of Congress carry limitations as to the use of the funds.

Sec. 11 of the administration bill (note 3, supra) would remit 52% percent of receipts from lease proceeds as to lands within 3 nautical mines from low tide to the reclamation fund "to which the act of June 17, 1902 (43 U. S. C. A., sec. 391 et seq.), as amended applies." The reclamation fund is to be used in surveys for the construction of irrigation works and related purposes and by its terms only applies to 17 of the 48 States, 16 littoral States being thereby excluded from participation. The 16 littoral States which would be excluded from participation are Mississippi, Alabama, Florida, Georgia, South Carolin North Carolina, Virginia, Maryland, Delaware, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, New Hampshire, and Maine. 37% percent of the receipts of the Federal Government with respect to operations within the same area would be remitted to the States but the use thereof would be limited.

95 Chief Justice Taney, in Scott v. Sanford (19 How. 393 (U. S. 1856)), said: "There is certainly no power given by the Constitution to the Federal Government to establish of maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of New States. * no power is given to acquire a territory to be held and governed permanently in that character." Id. at 446.

* *

98 299 U. S. 304 (1946); see United States v. Pink (315 U. S. 203 (1942)). 97 The doctrine of inherent powers was rejected by Chief Justice Taney in Er parte Merryman (17 Fed. Cas. 144, No. 9487 (1861)), by Mr. Justice Brewer in Kansas v. Colo rado (206 U. S. 46 (1907)), and in United States v. Butler (297 U. S. 1, 63 (1936)). A least two writers have questioned the soundness of some of the arguments and statements made by Mr. Justice Sutherland in support of the Curtiss-Wright decision, saying that historical facts do not support the conclusion that the National Government has inherent powers as distinguished from powers delegated by the people of the individual States Patterson, In re the United States v. The Curtiss-Wright Corporation. 22 Texas law Review 286 and 445 (1944): Levitan, Foreign Relations Power, an Analysis of Mr Justice Sutherland's Theory, 55 Yale Law Journal 467 (1946).

984.

it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Corstitution as the preservation of the Union and the maintenance of the National Government The Constitution, in all its provisions, looks to an indestructible union, composed of in destructible states" (Teras v. White, 7 Wall. 700, 725 (1868). See also 49 Am. Jur.

(States, Territories, and Dependencies), sec. 10 at 230, and sec. 16 at 237).