ownership. It will suffice to say that the California, Louisiana, and Texas decisions in regard to tidelands areas seem to sustain the views of our organization.

In regard to Senate Joint Resolution 20, I would like to say that the objectives of this legislation are in accordance with the views of my organization. We feel that any legislation which would expedite Federal stewardship of natural resources over which the Federal Government has jurisdiction is worthy of our endorsement.

However, we do not give this endorsement without some serious qualifications. We do not endorse the part of the resolution which would make permanent and put congressional approval on all State leases negotiated before June 5, 1950. We feel that in the event of a conflict between the existing leases and their legality that this particular section might cause considerable confusion. It is our understanding that there are a number of pending lease applications, the legality of which has not been determined by the courts.

These applications were filed under authority of the 1920 Leasing Act, and while the Attorney General and the Solicitor of the Department of the Interior, we understand, have ruled that the United States could not lease oil in the tidelands areas, the matter must finally be determined by the courts.

It would seem that some consideration should be given to those applicants, who, in good faith, filed under the Leasing Act of 1920. Certainly these applicants should receive as much consideration as those who negotiated leases with State governments, since the Supreme Court has decided that control of tidelands resources resides in the Federal Government and not in the States.

We also object to the provision which authorizes the Secretary of the Interior, with the approval of the Attorney General, to certify that the United States does not claim any proprietary interest in certain lands. We do not feel that any action conveying lands to the States would be legal if later found by the courts to be in areas where the United States has a paramount interest. This provision, together with the following one, seems to us rather dangerous. I am referring to section 3, which gives the Secretary of the Interior the right to determine whether or not lands are under navigable inland waters in the event of controversy between the United States and a State.

It is our understanding that the United States Supreme Court has assumed jurisdiction in the matter of determination of the boundary between navigable inland waters and tideland areas. In the event of a conflict between these two determinations, a great deal of confusion might result. We presume that determination of boundaries of so-called tidelands waters would, in the final analysis, be left up to the courts.

The CHAIRMAN. Judge Perez.

STATEMENT OF LEANDER H. PEREZ, DISTRICT ATTORNEY OF THE STATE OF LOUISIANA, TWENTY-FIFTH DISTRICT, NEW ORLEANS, LA.

Mr. PEREZ. Mr. Chairman, and gentlemen of the committee: I will be as brief as possible. At the outset I want to say that we in Louisiana are most anxious for prompt legislation on the subject of tidelands, whether you refer to it as interim or permanent legislation. I hope my appearance before you will add something to the discussions on the subject.

The CHAIRMAN. Judge, you appeared before us last year and made a very clear statement. But for the purposes of this record, would you identify yourself once more?

Mr. PEREZ. I am Leander H. Perez, district attorney of the State of Louisiana, twenty-fifth district. I am special counsel for the State of Louisiana in the tidelands matter. I have been engaged in this work since 1946, and first appeared before the Senate Judiciary Committee in 1946, Senator McCarran being chairman then.

I believe in order to approach and to understand properly the subject of tidelands and the bill before the committee, first we should consider the effect of the decision of the Supreme Court in the California, Louisiana, and Texas cases; and the settled jurisprudence of the land and of the Supreme Court of the United States for 122 years prior to the decision in the California case.

The subject of the proprietorship of the submerged lands within the navigable waters of each and every State of the Union, whether coastal or interior, is as deep-rooted and as important to our constitutional form of government, to the maintenance of the Constitution, and of the Union and of the sovereignty of the States, as the Constitution itself.

I say to you gentlemen that the present Supreme Court in effect did not adjudicate upon the issue of title, either in the California or the Louisiana or the Texas cases. And I say that to the committee because an adjudication necessarily is a decision by a court on matters at issue before the court.

And in the California case, and especially in the Louisiana and Texas cases, the Supreme Court flatly said that title in the conventional sense is not an issue in the case. Louisiana and Texas asked for a trial on the merits of the question of the issue of title.

Louisiana, resorting to its constitutional right under article VII of the Constitution, asked for a jury trial on the ground that the State of Louisiana had made an issue of title by denying the claim of title by the United States in its bill of complaint, had set up title in itself, had given the source of its title, and had abundant evidence to support its title upon a trial, and was entitled to a trial on the merits of the question of title.

The Supreme Court peremptorily refused a trial by jury without assigning any reasons. In its reasons for judgment finally, without a trial on the merits, without hearing any evidence, without having any evidence before it on the issue of title, and after flatly saying that title was not an issue in the case, the Court said in its opinion in the Louisiana case the reason why it refused Louisiana a trial by jury was that the question before the Court was one of equity for the granting of an injunction or an accounting.

Of course it recognized, as the law is from time out of mind, that a trial of the question of title is, under common law and our law, a question involving facts of ownership and is triable by jury. The Court avoided that question, however, by saying it was not an issue in the case.

I can point you decisions of the Supreme Court, which I say are as fundamental as our Constitution, and are still the law of the land because they have not been overruled.

The CHAIRMAN. Judge, may I ask you at that point to make your comment upon the following language from the decree which was entered by the Supreme Court.

Mr. PEREZ. In which case, sir?

The CHAIRMAN. In the case of United States v. Louisiana. I am reading from page 899, volume 340, United States:

The State of Louisiana has no title thereto or proper interest thereinreferring to the claim of the State of Louisiana for the title to the land, minerals, and other things

underlying the Gulf of Mexico, lying seaward of the ordinary low water mark off the coast of Louisiana * * * and extending seaward 27 miles.

Mr. PEREZ. That is very true, sir. But my statement still stands that an adjudication by a court can only be upon issues heard, tried, and considered by the court. That edict was included in the decree of the Court, after the Court in its opinion said:

As we pointed out in United States v. California, the issue in this class of litigation does not turn on title or ownership in the conventional sense.

And in California, the Court said:

Neither

meaning the United States or California

has suggested any necessity for the introduction of evidence and we preceive no such necessity at this stage of the case.

And that was its final decision in the case.

But pointedly the Court said in the Louisiana case that the issue of title in the conventional sense was not before the Court. The Court might have included in its decree anything else that was not at issue before the Court, but I submit that that would not be an adjudication of any litigious question, since it was not litigated before the Court, it was dismissed by the Court as not being an issue before the Court.

But I do want to point out to the committee, in order to have the proper and necessary information so that you may consider what the law on the question is, what the settled jurisprudence on the ques

tion of title is.

We must go back to the original decisions of the Supreme Court of the United States on this subject. First, there was the decision in the case of Harcourt v. Gaillard, 12 Wheat. 523, decided in 1827. The Court then was presided over by Chief Justice John Marshall. The Chief Justice had taken part in the great debates over the adoption of the United States Constitution.

Naturally, the judges of the Court in 1827, fresh from the discussions about the adoption of the Constitution were most familiar with the implication of the Constitution. As a matter of fact, Chief Justice Marshall has been referred to by historical writers as the Justice who gave the United States Constitution its soul by the interpretations placed upon the Constitution by his Court.

Senator ANDERSON. Mr. Chairman, I wonder if it would be possible for Judge Perez to help us out by indicating how he intends to tie this into Senate Joint Resolution 20? Personally I realize that the chairman and other members here who are lawyers will be greatly entertained, and I am sure enlightened by this. But to a layman, I do not know whether sitting here, we are going to be able to overrule the Supreme Court or sustain it. I do not see any possibility of tying this into our resolution. We are confronted with a decision of the Supreme Court.

You are going to argue with us whether the Supreme Court was right or wrong. I am not able to decide that question; not being a lawyer, probably it would be easier for me than a lawyer to decide it. What I am trying to say, Mr. Chairman, is I have heard sometimes in a court a judge instruct a lawyer, before he decided whether a certain question was admissible, to indicate how he intended to tie it up. I am just wondering if he would indicate how he intends to tie this up so we will know why what Justice Marshall did for the soul of the Constitution is important to Senate Joint Resolution 20.

Mr. PEREZ. If you would like me to strike that statement from the record, I would be glad to.

Senator ANDERSON. I do not mean it that way.

The CHAIRMAN. Judge, may I merely say this: Of course, you realize that all of the members of the committee are working under tremendous pressure. There are demands from every side for action by the committee. There are scores of bills to which we must give attention.

The argument of the Supreme Court, the whole of the argument on all of the briefs and your argument are available to us. If you contend, as I know you do, that the Congress should pass a law to surrender whatever title or right or interest may be claimed on behalf of the United States by any of its officials to the submerged lands within the boundaries of the respective coastal States, that would be perfectly relevant to the bill which was introduced yesterday by Senator Holland on behalf of himself and some 33 associates. It does not deal specifically with the terms of this bill, except to the degree that it is an assertion of a lack of basic authority to provide by law for the administration of any part of this area by an agency of the Federal Government. Is that not correct, sir?

Senator LONG. Mr. Chairman, if I might interrupt here, it does seem to me that if we are to act on any legislation involving the tidelands, certainly a proper report of our hearings should include a statement of both the Federal Government's position, and the position of the coastal States. Otherwise, it seems to me that anyone on the floor attempting to look at our hearings and judge the merits of our resolution, if he were an attorney, as two-thirds of the United States Senators are, would find that the hearings were lacking in much of the information that he would like to have. He would probably like to know the theory upon which the States feel that they are entitled to claim their coastal belt, as well as the theory upon which the Federal Government feels that the Federal Government has it; and also the theory of those claims of persons who have filed for leases overlapping State leases.

The CHAIRMAN. The Senator is quite right.

Senator LONG. And the record would be incomplete if it did not contain a statement indicating each side of the case.

The CHAIRMAN. We want that.

Senator ANDERSON. I am not trying to keep that out. I am only trying to say if you will show me how it ties in as you go along, it will be a little easier for me to follow perhaps.

Mr. PEREZ. I am sure I will do it in much less time if I am allowed to proceed the way I should. The point in the Harcourt-Gaillard case was that the original States did acquire title to the tidelands, and by tidelands is not meant simply that little narrow belt between

the high and the low tide along the shore. But it is so fundamental, and without a proper understanding of it we get nowhere. The United States was interested in that case as were the States of South Carolina and Georgia, two original States. As to whether the United States had acquired the territory in question by conquest from Spain or Florida; or whether the original States had acquired title to the area under the grants from the Crown, by the Declaration of Independence and the Treaty of Independence with the British Crown in 1783, the court held that South Carolina and Georgia had acquired their original title by grants from the Crown; that the limit of their claims, their territorial jurisdiction, was asserted by both States the same as the other 11 States in the Declaration of Independence; and the right to the propriety and territorial jurisdiction, was established by the most solemn of all international acts, the treaty of peace with the British Crown in 1783.

Now then, the Solicitor General, your first witness, made the statement that the Supreme Court of the United States had never held that any of the original States had ever acquired title to the soils under their navigable waters or to the tidelands or to their submerged lands. That was the first decision on the subject and there are numerous others.

In the California case the Court made the statement in passing that "neither the English charters granted to this Nation's settlers, nor the treaty of peace with England, nor any other document to which we have been referred, showed a purpose to set apart a 3-mile ocean belt for colonial estate ownership."

That simply restated the contention by the Solicitor General and the Department of Justice as to a 3-mile ocean belt. There was no grant in the English charters to the Nation's settlers, but, in fact, the grants were to the Colonies-not to the Nation's settlers. The treaty of peace with England, after the successful revolution of the Colonies, recognized the right of the 13 Original States to all right of government and to proprietorship and territorial jurisdiction formerly held by the Crown.

I have here excerpts from those grants from the Crown. Of course we understand that a statement made by the Court which is considered as obiter dictum, or off the record, because it is not an issue before the Court, without facts or evidence submitted, is not of binding force, nor does such statement change the historical facts.

Let me cite you from some of those English charters to the Colonies. For instance, the charter to North Carolina on March 25, 1584, conveyed by the British Crown to North Carolina all the soil of such lands, with the rights, royalties, franchises, and jurisdiction, as well marine as other, or the seas thereunto adjoining.

The charter of Massachusetts Bay in 1691 granted by the Crown to the colony all soils and royalties upon the main and also within the islands and seas adjoining.

Senator LONG. What date was that?

Mr. PEREZ. 1691.

Senator LONG. I understand the Court stated in the California decision that there was no assurance that the Crown had ever granted any rights to the States at all in their adjoining seas.

Mr. PEREZ. That is why I say this is pertinent and it is necessary for the Members of Congress to have a proper understanding of the subject; especially because the Court made that statement in the