DOCTRINE OF THE EQUALITY OF STATES
“Equality of constitutional right and power is the condition of all the States of the Union, old and new.”261 This doctrine, now a truism of constitutional law, did not find favor in the Constitutional Convention. That body struck out from this section, as reported by the Committee on Detail, two sections to the effect that “new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States concerning the public debt which shall be subsisting.”262 Opposing this action, Madison insisted that “the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States.”263 Nonetheless, after further expressions of opinion pro and con, the Convention voted nine states to two to delete the requirement of equality.264
Prior to this time, however, Georgia and Virginia had ceded to the United States large territories held by them, upon condition that new states should be formed therefrom and admitted to the Union on an equal footing with the original states.265 Since the admission of Tennessee in 1796, Congress has included in each state’s act of admission a clause providing that the state enters the Union “on an equal footing with the original States in all respects whatever.”266 With the admission of Louisiana in 1812, the principle of equality was extended to states created out of territory purchased from a foreign power.267 By the Joint Resolution of December 29, 1845, Texas, then an independent Nation, “was admitted into the Union on an equal footing with the original States in all respects whatever.”268
However, if the doctrine rested merely on construction of the declarations in the admission acts, then the conditions and limitations imposed by Congress and agreed to by the states in order to be admitted would nonetheless govern, since they must be construed along with the declarations. Again and again, however, in adjudicating the rights and duties of states admitted after 1789, the Supreme Court has referred to the condition of equality as if it were an inherent attribute of the Federal Union.269 That the doctrine is of constitutional stature was made evident at least by the time of the decision in Pollard’s Lessee, if not before.270 Pollard’s Lessee involved conflicting claims by the United States and Alabama of ownership of certain partially inundated lands on the shore of the Gulf of Mexico in Alabama. The enabling act for Alabama had contained both a declaration of equal footing and a reservation to the United States of these lands.271 Rather than an issue of mere land ownership, the Court saw the question as one concerning sovereignty and jurisdiction of the states. Because the original states retained sovereignty and jurisdiction over the navigable waters and the soil beneath them within their boundaries, retention by the United States of either title to or jurisdiction over common lands in the new states would bring those states into the Union on less than an equal footing with the original states. This, the Court would not permit. “Alabama is, therefore, entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it, before she ceded it to the United States. To maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding. . . . [T]o Alabama belong the navigable waters and soils under them, in controversy in this case, subject to the rights surrendered by the Constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights.”272
Finally, in 1911, the Court invalidated a restriction on the change of location of the state capital, which Congress had imposed as a condition for the admission of Oklahoma, on the ground that Congress may not embrace in an enabling act conditions relating wholly to matters under state control.273 In an opinion, from which Justices Holmes and McKenna dissented, Justice Lurton argued: “The power is to admit ‘new States into this Union,’ ‘This Union’ was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power, as including States whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission.”274
The equal footing doctrine is generally a limitation upon the terms by which Congress admits a state.275 That is, states must be admitted on an equal footing in the sense that Congress may not exact conditions solely as a tribute for admission, but it may, in the enabling or admitting acts or subsequently impose requirements that would be or are valid and effectual if the subject of congressional legislation after admission.276 Thus, Congress may embrace in an admitting act a regulation of commerce among the states or with Indian tribes or rules for the care and disposition of the public lands or reservations within a state. “[I]n every such case such legislation would derive its force not from any agreement or compact with the proposed new State, nor by reason of its acceptance of such enactment as a term of admission, but solely because the power of Congress extended to the subject, and, therefore, would not operate to restrict the State’s legislative power in respect of any matter which was not plainly within the regulating power of Congress.”277
Until recently the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or property rights.278 Broadly speaking, every new state is entitled to exercise all the powers of government which belong to the original states of the Union.279 It acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property throughout its limits even as to federal lands, except where the Federal Government has reserved280 or the state has ceded some degree of jurisdiction to the United States, and, of course, no state may enact a law that would conflict with the constitutional powers of the United States. Consequently, it has jurisdiction to tax private activities carried on within the public domain (although not to tax the Federal lands), if the tax does not constitute an unconstitutional burden on the Federal Government.281 Statutes applicable to territories, e.g., the Northwest Territory Ordinance of 1787, cease to have any operative force when the territory, or any part thereof, is admitted to the Union, except as adopted by state law.282 When the enabling act contains no exclusion of jurisdiction as to crimes committed on Indian reservations by persons other than Indians, state courts are vested with jurisdiction.283 But the constitutional authority of Congress to regulate commerce with Indian tribes is not inconsistent with the equality of new states,284 and conditions inserted in the New Mexico Enabling Act forbidding the introduction of liquor into Indian territory were therefore valid.285 Similarly, Indian treaty rights to hunt, fish, and gather on lands ceded to the Federal Government were not extinguished by statehood. These “usufructuary” rights were subject to reasonable state regulation, and hence were not irreconcilable with state sovereignty over natural resources.286
Admission of a state on an equal footing with the original states involves the adoption as citizens of the United States of those whom Congress makes members of the political community and who are recognized as such in the formation of the new state.287
Judicial Proceedings Pending on Admission of New States
Whenever a territory is admitted into the Union, the cases pending in the territorial court that 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 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.
288 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.289 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.290
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.291
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 waters292 and tidally influenced waters.293 In Pollard’s Lessee v. Hagan,294 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 beneath navigable water passes to a new state upon admission. The principle of this case, which also applies to tidally influenced waters, supplies the rule of decision in many property-claims cases.295
After refusing to extend the inland-water rule of Pollard’s Lessee to the three mile marginal belt under the ocean along the coast,296 the Court applied the principle in reverse in United States v. Texas.297 Because the original states had been found not to own 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 admission298 has been qualified. However, when Congress, through passage of the Submerged Lands Act of 1953,299 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.300
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,301 or the right to fish in designated waters,302 which will be binding on the state.
- Escanaba Co. v. City of Chicago, 107 U.S. 678, 689 (1883).
- 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 454 (rev. ed. 1937).
- Id. The present provision was then adopted as a substitute. Id. at 455.
- Pollard v. Hagan, 44 U.S. (3 How.) 212, 221 (1845). The Continental Congress in responding in the Northwest Ordinance, on July 13, 1787, provided that when each of the designated states in the territorial area achieved a population of 60,000 free inhabitants it was to be admitted “on an equal footing with the original States, in all respects whatever.” An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio, Art. V, 5 JOURNALS OF CONGRESS 752–754 (1823 ed.), reprinted in C. Tansill ed., Documents Illustrative of the Formation of the Union of the American States, H. DOC. NO. 398, 69th Cong., 1st Sess. (1927), 47, 54.
- 1 Stat. 491 (1796). Prior to Tennessee’s admission, Vermont and Kentucky were admitted with different but conceptually similar terminology. 1 Stat. 191 (1791); 1 Stat. 189 (1791).
- 2 Stat. 701, 703 (1812).
- Justice Harlan, speaking for the Court, in United States v. Texas, 143 U.S. 621, 634 (1892) (citing 9 Stat. 108).
- Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914); Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 434 (1892); Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891); Weber v. Harbor Commissioners, 85 U.S. (18 Wall.) 57, 65 (1873).
- Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845). See Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Permoli v. Municipality No. 1 of New Orleans, 44 U.S. (3 How.) 588 (1845).
- 3 Stat. 489, 492 (1819).
- Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 228–29 (1845) (emphasis supplied). See also id. at 222–23. A unanimous Court explained the rule on state ownership of navigable waters in PPL Montana, LLC v. Montana, 565 U.S. ___, No. 10–218, slip op. (2012). Under the equal footing doctrine, a State, upon entering the Union, gains title to the beds of waters then navigable or tidally influenced, subject only to federal powers under the Constitution (e.g., the Commerce Clause). By contrast, the United States retains any title vested in it to lands beneath waters not then navigable or tidally influenced. For the distinct purpose of the equal footing doctrine, “navigable waters” are those waters used, or susceptible to use, for trade and travel by customary means at the time of statehood. Furthermore, the “navigability” of rivers is determined on a segment-by-segment basis, and lands under portions of a stream that were impassable at statehood were not conveyed by force of the doctrine.
- Coyle v. Smith, 221 U.S. 559 (1911).
- 221 U.S. at 567.
- See South Carolina v. Katzenbach, 383 U.S. 301, 328–29 (1966). However, in recent years the Court has relied on the general principle of “constitutional equality” among the states to strike down both federal and state laws. See, e.g., Franchise Tax Bd. of Cal. v. Hyatt, 578 U.S. ___, No. 14–1175, slip op. at 7 (2016); Shelby Cty. v. Holder, 570 U.S. ___, No. 12–96, slip op. at 9 (citing Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)).
- Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 224–25, 229–30 (1845); Coyle v. Smith, 221 U.S. 559, 573–74 (1911). See also Bolln v. Nebraska, 176 U.S. 83, 89 (1900); Ward v. Race Horse, 163 U.S. 504, 514 (1895); Escanaba Co. v. City of Chicago, 107 U.S. 678, 688 (1882); Withers v. Buckley, 61 U.S. (20 How.) 84, 92 (1857).
- Coyle v. Smith, 221 U.S. 559, 574 (1911). Examples include Stearns v. Minnesota, 179 U.S. 223 (1900) (congressional authority to dispose of and to make rules and regulations respecting the property of the United States); United States v. Sandoval, 231 U.S. 28 (1913) (regulating Indian tribes and intercourse with them); United States v. Chavez, 290 U.S. 357 (1933) (same); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9–10 (1888) (prevention of interference with navigability of waterways under Commerce Clause).
- United States v. Texas, 339 U.S. 707, 716 (1950); Stearns v. Minnesota, 179 U.S. 223, 245 (1900).
- Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 223 (1845); McCabe v. Atchison T. & S.F. Ry., 235 U.S. 151 (1914).
- Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886).
- Wilson v. Cook, 327 U.S. 474 (1946).
- Permoli v. First Municipality, 44 U.S. (3 How.) 589, 609 (1845); Sands v. Manistee River Imp. Co., 123 U.S. 288, 296 (1887); see also Withers v. Buckley, 61 U.S. (20 How.) 84, 92 (1858); Huse v. Glover, 119 U.S. 543 (1886); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9 (1888); Cincinnati v. Louisville & Nashville R.R., 223 U.S. 390 (1912).
- Draper v. United States, 164 U.S. 240 (1896), following United States v. McBratney, 104 U.S. 621 (1882).
- Dick v. United States, 208 U.S. 340 (1908); Ex parte Webb, 225 U.S. 663 (1912).
- United States v. Sandoval, 231 U.S. 28 (1913).
- Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999) (overruling Ward v. Race Horse, 163 U.S. 504 (1896)).
- Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 170 (1892).
- Baker v. Morton, 79 U.S. (12 Wall.) 150, 153 (1871).
- Freeborn v. Smith, 69 U.S. (2 Wall.) 160 (1865).
- John v. Paullin, 231 U.S. 583 (1913).
- Hunt v. Palao, 45 U.S. (4 How.) 589 (1846). Cf. Benner v. Porter, 50 U.S. (9 How.) 235, 246 (1850).
- “Navigable waters”, for equal footing purposes, are those waters used, or susceptible to use, for trade and travel at the time of statehood. PPL Montana, LLC v. Montana, 565 U.S. ___, No. 10–218, slip op. at 11–13 (2012).
- E.g., Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891).
- 44 U.S. (3 How.) 212, 223 (1845). See also Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410 (1842).
- See PPL Montana, LLC v. Montana, 565 U.S. ___, No. 10–218, slip op. (2012) (Montana not able to charge rent to hydroelectric facilities located on portions of rivers that were impassable when Montana became a State); 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); Idaho v. United States, 533 U.S. 262 (2001) (presumption rebutted by indications—some occurring after statehood—that Congress intended to reserve certain submerged lands for benefit of an Indian tribe); Oregon ex rel. State Land Bd. 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 pre-statehood grantee from the United States of riparian lands near mouth of Columbia River owned soil below high-water mark).
- United States v. California, 332 U.S. 19, 38 (1947); United States v. Louisiana, 339 U.S. 699 (1950).
- 339 U.S. 707, 716 (1950). See United States v. Maine, 420 U.S. 515 (1975) (unanimously reaffirming the California, Louisiana, and Texas cases).
- Brown v. Grant, 116 U.S. 207, 212 (1886).
- 67 Stat. 29, 43 U.S.C. §§ 1301–1315.
- Alabama v. Texas, 347 U.S. 272, 274–77, 281 (1954). Justice Black and Douglas dissented.
- Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v. St. Louis, 201 U.S. 332 (1906).
- United States v. Winans, 198 U.S. 371, 378 (1905); Seufert Bros. 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 exacting a license fee that is both regulatory and revenue-producing. Tulee v. Washington, 315 U.S. 681 (1942).