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CRS Annotated Constitution

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Judicial Proceedings Pending on Admission of New States

Whenever a territory is admitted into the Union, the cases pending in the territorial court which are of exclusive federal cognizance are transferred to the federal court having jurisdiction over the area; cases not cognizable in the federal courts are transferred[p.886]to the tribunals of the new State, and those over which federal and state courts have concurrent jurisdiction may be transferred either to the state or federal courts by the party possessing the option under existing law.278 Where Congress neglected to make provision for disposition of certain pending cases in an enabling act for the admission of a State to the Union, a subsequent act supplying the omission was held valid.279 After a case, begun in a United States court of a territory, is transferred to a state court under the operation of the enabling act and the state constitution, the appellate procedure is governed by the state statutes and procedures.280

The new State, without the express or implied assent of Congress, cannot enact that the records of the former territorial court of appeals should become records of its own courts or provide by law for proceedings based thereon.281

Property Rights of States to Soil Under Navigable Waters

The “equal footing” doctrine has had an important effect on the property rights of new States to soil under navigable waters. In Pollard v. Hagan,282 as was observed above, the Court held that the original States had reserved to themselves the ownership of the shores of navigable waters and the soils under them, and that under the principle of equality the title to the soils of navigable water passes to a new State upon admission. The principle of this case supplies the rule of decision in many property–claims cases.283

After refusing to extend the inland–water rule of Pollard’s Lessee to the three mile marginal belt under the ocean along the coast,284 the Court applied the principle in reverse in United States v. Texas.285 Since the original States had been found not to own[p.887]the soil under the three mile belt, Texas, which concededly did own this soil before its annexation to the United States, was held to have surrendered its dominion and sovereignty over it, upon entering the Union on terms of equality with the existing States. To this extent, the earlier rule that unless otherwise declared by Congress the title to every species of property owned by a territory passes to the State upon admission286 has been qualified. However, when Congress, through passage of the Submerged Lands Act of 1953,287 surrendered its paramount rights to natural resources in the marginal seas to certain States, without any corresponding cession to all States, the transfer was held to entail no abdication of national sovereignty over control and use of the oceans in a manner destructive of the equality of the States.288

While the territorial status continues, the United States has power to convey property rights, such as rights in soil below the high– water mark along navigable waters,289 or the right to fish in designated waters,290 which will be binding on the State. But a treaty with an Indian tribe which gave hunting rights on unoccupied lands of the United States, which rights should cease when the United States parted with its title to any of the land, was held to be repealed by the admission to the Union of the territory in which the hunting lands were situated.291

Supplement: [P. 887, delete last sentence of section]

Clause 2. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.[p.888]


Methods of Disposing Thereof

The Constitution is silent as to the methods of disposing of property of the United States. In United States v. Gratiot,292 in which the validity of a lease of lead mines on government lands was put in issue, the contention was advanced that “disposal is not letting or leasing,” and that Congress has no power “to give or authorize leases.” The Court sustained the leases, saying “the disposal must be left to the discretion of Congress.”293 Nearly a century later this power to dispose of public property was relied upon to uphold the generation and sale of electricity by the Tennessee Valley Authority. The reasoning of the Court ran thus: the potential electrical energy made available by the construction of a dam in the exercise of its constitutional powers is property which the United States is entitled to reduce to possession; to that end it may install the equipment necessary to generate such energy. In order to widen the market and make a more advantageous disposition of the product, it may construct transmission lines and may enter into a contract with a private company for the interchange of electric energy.294


278 Baker v. Morton, 12 Wall. (79 U.S.) 150, 153 (1871).
279 Freeborn v. Smith, 2 Wall. (69 U.S.) 160 (1865).
280 John v. Paullin, 231 U.S. 583 (1913).
281 Hunt v. Palao, 4 How. (45 U.S.) 589 (1846). Cf. Benner v. Porter, 9 How. (50 U.S.) 235, 246 (1850).
282 3 How. (44 U.S.) 212, 223 (1845). See also Martin v. Waddell, 16 pet. (41 U.S.) 367, 410 (1842).
283 See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) (confirming language in earlier cases recognizing state sovereignty over tidal but nonnavigable lands); Utah Division of State Lands v. United States, 482 U.S. 193 (1987) (applying presumption against congressional intent to defeat state title to find inadequate federal reservation of lake bed); Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977) (doctrine requires utilization of state common law rather than federal to determine ownership of land underlying river that is navigable but not an interstate boundary); Shively v. Bowlby, 152 U.S. 1 (1894) (whether Oregon or a prestatehood grantee from the United States of riparian lands near mouth of Columbia River owned soil below high–water mark).
284 United States v. California, 332 U.S. 19, 38 (1947); United States v. Louisiana, 339 U.S. 699 (1950).
285 339 U.S. 707, 716 (1950). See United States v. Maine, 420, U.S. 515 (1975) (unanimously reaffirming the California, Louisiana, and Texas cases).
286 Brown v. Grant, 116 U.S. 207, 212 (1886).
287 67 Stat. 29 , 43 U.S.C. §§ 1301 –1315.
288 Alabama v. Texas, 347 U.S. 272, 274–277, 281 (1954). Justice Black and Douglas dissented.
289 Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v. St. Louis, 201 U.S. 332 (1906).
290 United States v. Winans, 198 U.S. 371, 378 (1905); Seufert Bros. Co. v. United States, 249 U.S. 194 (1919). A fishing right granted by treaty to Indians does not necessarily preclude the application to Indians of state game laws regulating the time and manner of taking fish. New York ex rel. Kennedy v. Becker, 241 U.S. 556 (1916). See also Metlakatla Indians v. Egan, 369 U.S. 45, 54, 57–59 (1962): Kake Village v. Egan, 369 U.S. 60, 64–65, 67–69, 75–76 (1962). But it has been held to be violated by the exaction of a license fee which is both regulatory and revenue producing. Tulee v. Washington, 315 U.S. 681 (1942).
291 Ward v. Race Horse, 163 U.S. 504, 510, 514 (1896).
292 14 Pet. (39 U.S.) 526 (1840).
293 Id., 533, 538.
294 Ashwander v. TVA, 297 U.S. 288, 335–340 (1936). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938).
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