Constitution of the United States/Art. IV/Sec. 3/Clause 1 Admissions

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Article I Legislative Branch
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Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
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Art. IV, Section 3 New States and Federal Property
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Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article IV Relationships Between the States

Section 3 New States and Federal Property

Clause 1 Admissions

Clause Text
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Overview of Admissions (New States) Clause[edit | edit source]

The first clause of Article IV, Section 3 authorizes Congress to admit new states into the union. It is sometimes called the Admissions Clause, the Admission Clause, or the New States Clause.[1]

The Admissions Clause contains two main limitations on congressional power to admit new states. The first limitation is based on the constitutional text: when a proposed new state is formed from territory in the jurisdiction of an existing state or states, the consent of the affected state legislatures is required (in addition to congressional approval).[2] For example, Virginia's consent was given to the admission of the state of Kentucky, formed out of Virginia's western regions in 1792.[3]

Because the Clause uses a semicolon instead of a comma after the phrase "no new State shall be formed or erected within the Jurisdiction of any other State," a literal reading of the text might incorrectly suggest that the Constitution categorically forbids forming a new state out of the territory of an existing state.[4] The drafting history of the Admissions Clause shows, however, that the Framers contemplated that new states could be formed from the territory of an existing state, if that state consented.[5] In practice, Congress--beginning with the First Congress[6]--has several times admitted new states formed out of the territory of a consenting existing state without constitutional controversy.[7]

The second limitation, known as the "equal footing doctrine"[8] is rooted in long-standing congressional practice[9] and judicial interpretations of the Admissions Clause. Under the equal footing doctrine, new states must be admitted on equal terms "with all of the powers of sovereignty and jurisdiction which pertain to the original states."[10] In particular, Congress may not impose conditions on a state's admission that would diminish the equal sovereignty of the states.[11]

Thirty-seven states have been admitted to the United States under the Admissions Clause. Vermont was the first in 1791,[12] and Hawaii the most recent in 1959.[13] Beyond requiring at least one act of Congress for admission (and, if applicable, the consent of affected state legislatures), the Admissions Clause leaves the details of the admission process to congressional determination. Most states were first organized by Congress as federal territories before their admission as states,[14] but that is not constitutionally required. Texas, for example, was an independent republic before it was annexed by the United States and admitted as state in 1845.[15]

Historical Background on Admissions Clause[edit | edit source]

The Articles of Confederation did not provide for any general process to admit new states.[16] Instead, the Articles stated that Canada (referring to what was then the British Province of Quebec) could join the Confederation as of right, but "no other colony shall be admitted" without the consent of nine states.[17] Despite this deficiency, the Confederation Congress enacted laws--most notably the Northwest Ordinance of 1787--which organized the territories of the United States, establishing a system of territorial government and a process for admitting new states from federal territory.[18]

At the Constitutional Convention, a provision for congressional authority to admit new states was one of the original resolutions in the Virginia Plan presented by Edmund Randolph.[19] The Convention rejected a proposal by Elbridge Gerry to limit the number of western states so that they should "never be able to outnumber the Atlantic states."[20] The Committee of Detail's early draft of the Clause required a supermajority (two-thirds) of Congress to admit a new state and explicitly required that admission be "on the same terms with the original States."[21] Gouverneur Morris, however, successfully moved to remove the "same terms" language, over James Madison's objection,[22] arguing that Congress should be able to set the terms for state admission to limit the power of new western states.[23] Morris, joined by Luther Martin, also successfully moved to strike out the congressional supermajority requirement for admission.[24]

The remaining debates focused on whether the consent of an affected state should be required when a new state is formed from its territory. Luther Martin repeatedly argued that a consent requirement would give "large States claiming the Western lands" (such as Virginia and North Carolina) an effective veto over the admission of new states.[25] The prevailing view at the Convention, however, was that Congress should not have the power to "dismember a State without its consent."[26] After some minor changes intended to facilitate the admission of Vermont,[27] Gouverneur Morris and John Dickinson proposed language substantially similar to the final Admissions Clause, which passed the Convention.[28]

Equal Footing Doctrine Generally[edit | edit source]

Despite the Constitutional Convention's rejection of explicit language guaranteeing the equality of newly admitted states, Congress has provided in state admission acts that the new state enters the union "on an equal footing with the original States in all respects whatever."[29] With the admission of Louisiana in 1812, the principle of equality was extended to states created out of territory not possessed by the United States at the time of the Constitution's ratification.[30]

The equal footing doctrine is a constitutional requirement and not merely a statutory interpretation of Congress's acts of admission.[31] The Supreme Court has held the sovereign equality of states to be an inherent attribute of the "Union" envisioned in the Constitution.[32] The constitutional basis for the doctrine was clear at least by the 1845 decision in Pollard's Lessee v. Hagan, if not before.[33]

Pollard's Lessee involved conflicting claims to certain partially inundated lands covered by the Mobile River in the city of Mobile, Alabama.[34] The enabling act for the admission of Alabama had contained both a declaration of equal footing and an explicit reservation to the United States of these lands, as covered by "navigable waters."[35] The plaintiff in Pollard's Lessee derived his claim from a grant by the United States after Alabama's admission as state.[36] The key question in the case was thus whether the United States could convey valid title to the property. Because the original states had sovereignty and jurisdiction over their navigable waters and the soil beneath them, the Court reasoned that retention by the United States of title to such lands, as a condition of statehood, would put Alabama on an unequal footing with the original states.[37] Thus, at its admission, Alabama acquired sovereignty over its "navigable waters and soils under them . . . and no compact that might be made between her and the United States could diminish or enlarge these rights."[38]

In the 1911 decision Coyle v. Smith, the Court invalidated a restriction imposed by Congress in the enabling act for the admission of Oklahoma, which purported to require that the new state's capital be located at Guthrie until 1913.[39] The Court held that Congress could not use conditions on admission to "restrict the powers of such new state in respect of matters which would otherwise be exclusively within the sphere of state power."[40] To diminish state sovereignty in this way would violate the Constitution by creating "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."[41]

Broadly speaking, every new state may exercise all the powers of government which belong to the original thirteen states.[42] It acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property throughout its territory, except on lands the United States has reserved as its property.[43] Conditions of territorial government, such as the Northwest Ordinance of 1787 and similar acts, are no longer operative once a state is admitted, except when adopted by state law.[44] It also follows from the equal footing doctrine that the citizens of a territory, upon admission, "became citizens of the United States and of the [admitted] state."[45]

Historically, the equal footing doctrine has been applied almost exclusively in the context of conditions on the admission of new states.[46] More recently, the Supreme Court in the 2000s and 2010s has relied on the general principle of equality sovereignty among the states to strike down both federal and state laws outside the state admission context.[47]

Permissible Conditions on State Admissions[edit | edit source]

The equal footing doctrine does not mean that Congress may not place any conditions in legislation admitting new states. Rather, Congress has broad power to impose conditions under its authority over federal territories,[48] its enumerated powers,[49] and the Admissions Clause itself. The equal footing doctrine only prohibits conditions which limit state sovereignty after admission, in areas that are "exclusively within the sphere of state power."[50] It follows that at least two broad categories of admission conditions are constitutional notwithstanding the equal footing doctrine.

First, Congress may impose "provisions which are fulfilled by the admission of the state."[51] For example, Congress may require the population of a territory to have a certain number of inhabitants before it seeks admission[52] or that proposed state laws or constitutions meet congressional standards (and be ratified by the people of the state) to qualify for admission.[53] As the Supreme Court has stated, the Admissions Clause "is not a mandate, but a power to be exercised with discretion."[54] Congressional prerequisites for admission do not violate the equal footing doctrine because they do not bind the newly sovereign state after admission.[55]

Second, Congress may impose post-statehood requirements in state admission acts that would be a valid exercise of congressional power if they were subject of federal legislation after admission.[56] Thus, Congress may include in an admission or enabling act regulations of interstate commerce or commerce with Indian Tribes, or regulations of federal lands within a state.[57] Such provisions derive force not from their acceptance as a term of admission but from the Supremacy Clause[58] and "the power of Congress extended to the subject."[59] Because Congress's power in these areas extends equally to the original states, such legislation is not invalid under the equal footing doctrine just because it is part of an act of state admission.

Equal Footing and Property Rights in Submerged Lands[edit | edit source]

The equal footing doctrine has great significance for the property rights to land under navigable waters[60] and tidally influenced waters.[61] In Pollard's Lessee v. Hagan, the Supreme Court held that the equal footing doctrine requires that the title to lands beneath navigable waters generally passes to a new state upon its admission.[62] The principle of this case supplies the rule of decision for many property disputes decided by the Court.[63] The Court has summarized title consequences of the equal footing doctrine as follows:

Upon statehood, the State gains title within its borders to the beds of waters then navigable (or tidally influenced). It may allocate and govern those lands according to state law subject only to the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce. The United States retains any title vested in it before statehood to any land beneath waters not then navigable (and not tidally influenced), to be transferred or licensed if and as it chooses.PPL Montana LLC, 565 U.S. at 591 (citations and quotations omitted).

Beginning with the 1894 case Shively v. Bowlby, the Court has recognized the authority of the United States, while territorial status continues, to transfer title to land below navigable waters when necessary for "public purposes appropriate to the objects for which the United States hold the territory."[64] Thus, despite the rule of Pollard's Lessee, the United States may "defeat a prospective State's title to land under navigable waters by a prestatehood conveyance of the land to a private party for a public purpose appropriate to the Territory."[65] The United States may also defeat a prospective state's title through a clear intention to reserve submerged lands to itself as part of a federal reservation, such as a wildlife refuge, or an Indian reservation.[66]

That said, because control over property underlying navigable waters is so closely tied to state sovereignty,[67] states enjoy a strong "presumption of title" to submerged lands beneath inland navigable waters within their boundaries.[68] To determine whether that presumption is overcome, courts apply a two-step test: (1) "whether the United States clearly intended to include submerged lands within the reservation"; and (2) "whether the United States expressed its intent to retain federal title to [the] submerged lands."[69] Intent by the United States to defeat state title must be "'definitely declared or otherwise made very plain.'"[70]

In 1947, the Court in United States v. California refused to extend Pollard's Lessee's rule for land under inland navigable waters to submerged lands in the three-mile marginal belt under the ocean along a state's coast.[71] Whether the states or the federal government had rights to these lands "became of great potential importance at the beginning of [the twentieth] century when oil was discovered there."[72] Examining the historical evidence, the Court held that, unlike inland navigable waters, the thirteen original colonies did not acquire ownership of the land under their marginal seas upon independence and that therefore "national rights are paramount."[73]

Indeed, the Court applied the Pollard's Lessee principle in reverse for lands under marginal seas in United States v. Texas.[74] Although Texas was an independent republic with conceded sovereignty over the submerged lands of its marginal sea before its annexation to the United States, Texas was held to have implicitly surrendered its sovereignty over these submerged lands upon admission.[75] Congress responded to the California and Texas decisions in 1953 through the Submerged Lands Act[76] and Outer Continental Shelf Lands Act.[77] These laws divided jurisdiction over the continental shelf, with Congress generally ceding to the coastal states title to submerged lands at a specified distance from their coasts (generally three geographical miles).[78] For its part, the United States confirmed its exclusive control over the outer continental shelf, meaning all submerged lands beyond those reserved to states and up the edge of the United States' jurisdiction and control.[79] The result of these laws is that, despite the Court's decision in California, state claims to submerged lands beneath waters within three nautical miles of their coasts are analyzed under the Pollard's Lessee framework.[80]

Equal Footing and Rights of Indian Tribes[edit | edit source]

The constitutional authority of Congress to regulate commerce with Indian Tribes,[81] and of the United States to make treaties with them,[82] are not inconsistent with the equality of new states.[83] Congress may therefore impose conditions in an enabling act that regulate commerce with Indian Tribes, such as a condition forbidding the introduction of liquor into Indian territory, and those conditions remain valid after statehood.[84]

Similarly, treaties entered into between the United States Indian Tribes during a territorial period--which may, for example, grant the Tribe rights to fish in designated waters, or hunt and gather on lands ceded by a tribe to the United States--are not automatically extinguished by statehood.[85] Such treaty rights are valid unless Congress clearly indicates its intent to abrogate them in its act of admission, or the treaty itself makes clear that the parties intended the rights to terminate at statehood.[86] The United States may also transfer title in territorial lands to Indian Tribes by treaty, which is not extinguished by statehood; but title to property underlying navigable waters must be reserved or conveyed by a clear statement or it will pass to the state upon admission under the rule of Pollard's Lessee v. Hagan.[87]

Under the 1882 decision United States v. McBratney, when a state admission or enabling act contains no clear provision excluding state jurisdiction, state courts are vested with jurisdiction over crimes committed on Indian reservations by non-Indians against non-Indians upon statehood.[88] However, Congress may explicitly preempt state jurisdiction in Indian country by federal law, and state jurisdiction is implicitly preempted "when the exercise of state jurisdiction would unlawfully infringe on tribal self-government."[89] In Oklahoma v. Castro-Huerta, the Court extended McBratney's presumption of state criminal jurisdiction to crimes committed by non-Indians against Indians on Indian reservations, absent congressional preemption.[90] Because divesting a state of jurisdiction over crimes within its territory affects its sovereignty under the equal footing doctrine, the Court required "clear statutory language" in a state enabling act or another act of Congress to preclude state criminal jurisdiction over crimes by non-Indians.[91]

Effect of State Admission on Pending Judicial Proceedings[edit | edit source]

In its acts of admission, Congress may explicitly provide for the transfer and disposition of civil and criminal cases pending in the territorial courts following statehood, consistently with the Constitution.[92] Territorial courts are generally "legislative courts" not subject to Article III.[93] Because the federal government has plenary authority in a territory, there is no distinction between federal and state jurisdiction while the territory exists.[94]

After statehood, cases pending in the territorial courts of exclusive federal cognizance are generally transferred to the federal court having jurisdiction over the area.[95] 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.[96] When a formerly territorial case 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 law.[97]

Without action from Congress, the Supreme Court may not directly review the decision of a territorial court of appeals after that court has ceased to exist following statehood.[98] But Congress may by law provide for Supreme Court appellate review of such cases or for their transfer to an appropriate federal court.[99] When Congress neglected to make provision for disposition of certain pending cases in an enabling act for the admission of a state, a subsequent act addressing the omission was held valid.[100]

  1. See, e.g., Ralph H. Brock, The Ultimate Gerrymander: Dividing Texas into Four New States, 6 Cardozo Pub. L. Pol'y & Ethics J. 651, 662 (2008) (using the term "Admissions Clause" to refer to this provision); Robert Barrett, History on an Equal Footing: Ownership of the Western Federal Lands, 68 U. Colo. L. Rev. 761, 767 (1997) (using the term "New States Clause" to refer to this provision); Peter Raven-Hansen, The Constitutionality of D.C. Statehood, 60 Geo. Wash. L. Rev. 160, 167 (1991) (using the term "Admission Clause" to refer to this provision).
  2. U.S. Const. art IV, § 3, cl. 2.
  3. 1 Stat. 189 (1791). The circumstances surrounding the admission of Vermont, the first new state following the Constitution's ratification, are somewhat ambiguous. Although New York claimed Vermont as part of its territory, Vermont declared independence from New York in 1777 and functioned as an independent republic until its admission in 1791. See generally Vasan Kesavan and Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 Cal. L. Rev. 291, 371-75 (2002). Although the New York legislature did consent to the admission of Vermont, it is not clear whether consent was constitutionally required, because Vermont was (arguably) not within New York's jurisdiction. Id. In fact, records from the Convention show that the Framers carefully worded the Admissions Clause to allow Vermont's admission as a state without "a dependence on the consent of N[ew] York." See 2 Records of the Federal Convention of 1787, at 463 (Max Farrand, ed. 1911) [hereinafter Farrand's Records].
  4. See Kesavan & Paulsen, supra note here, at 332-82 (examining this so-called "semicolon problem" at length). Sources as authoritative as the Supreme Court and Justice Story have misquoted the Admissions Clause with the ambiguous second semicolon replaced by a comma. See Pollard's Lessee v. Hagan, 44 U.S. 212, 223 (1845); 3 Joseph Story, Commentaries on the Constitution of the United States § 1308 (1833).
  5. See 2 Farrand's Records, supra note here, at 455, 464. This intended meaning is clear from earlier drafts of the Clause; the ambiguous semicolon was added only by the Committee of Style late in the Convention. Id. at 602.
  6. See Marsh v. Chambers, 463 U.S. 783, 790 (1983) (actions of the First Congress provide "contemporaneous and weighty evidence" of Constitution's meaning) (quotations and citations omitted).
  7. See, e.g., 1 Stat. 189 (1791) (admission of Kentucky, with the consent of Virginia); 3 Stat. 544 (1820) (admission of Maine, with the consent of Massachusetts).
  8. See Art. IV, Sec. 3, Cl. 1: Equal Footing Doctrine Generally.
  9. In its acts of admission (or in enabling acts setting out a process for state admission), Congress has consistently specified that the new state is admitted "on an equal footing with the original states, in all respects whatever." See, e.g., 1 Stat. 491-92 (1796) (Tennessee); 2 Stat. 173 (1802) (Ohio); 5 Stat. 144 (1837) (Michigan); 9 Stat. 452 (1850) (California); 36 Stat. 557 (1910) (New Mexico and Arizona).
  10. Coyle v. Smith, 221 U.S. 559, 573 (1911).
  11. Id. at 567-68, 573.
  12. 1 Stat. 191 (1791).
  13. 73 Stat. 4 (1959).
  14. See Art. IV, Sec. 3, Clause 2 Territory and Other Property; Art. IV, Sec. 3, Cl. 2: Power of Congress over Territories.
  15. 5 Stat. 797 (1845); see also United States v. Texas, 143 U.S. 621, 634 (1892).
  16. See The Federalist No. 43 (James Madison).
  17. Articles of confederation of 1781, art. XI. ("Canada acceding to this confederation, and joining in the measures of the united states, shall be admitted into, and entitled to all the advantages of this union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine states.").
  18. See Northwest Ordinance of 1787, art. V. The Ordinance followed Virginia's 1784 cessation to the United States of its territory northwest of the Ohio river (and similar cessations by other states claiming the territory), upon the condition that new states should be formed from the territory and admitted to the union on an equal footing with the original states. See Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 221-22 (1845). The First Congress reenacted the Northwest Ordinance after the Constitution's ratification. 1 Stat. 50 (1789).
  19. See 1 Records of the Federal Convention of 1787, at 22 (Max Farrand, ed. 1911) [hereinafter Farrand's Records] ("Resolvd. that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a 'voluntary junction of Government & Territory or otherwise, with the consent of a number of voices in the National legislature less than the whole.") & 121 (approval of the resolution).
  20. 2 Farrand's Records, supra note here, at 3.
  21. Id. at 188. This language echoed the Northwest Ordinance's provision that new states from the territory would be admitted "on an equal footing with the original States in all respects whatever." Northwest Ordinance of 1787, art. V.
  22. 2 Farrand's Records, supra note here, at 454 (Madison argued that "the Western States neither would nor ought to submit to a Union which degraded them from an equal rank with the other States.").
  23. Id.
  24. Id. at 454.
  25. Id. at 455; see also id. at 463-64.
  26. Id. at 455 (statement of Roger Sherman); see also id. at 462.
  27. Id. at 463.
  28. See id. at 464 ("New States may be admitted by the Legislature into the Union: but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States without the consent of the Legislature of such State as well as of the General Legislature.") & 465 ("Nor shall any State be formed by the junction of two or more States or parts thereof, without the consent of the Legislatures of such States, as well as of the Legislature of the U. States."). The Committee of Style merged these two clauses and edited this language into its final form. Id. at 578, 602.
  29. See, e.g., 1 Stat. 491 (1796) (Tennessee); see generally Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 221 (1845). Vermont and Kentucky were admitted using somewhat different terminology. 1 Stat. 191 (1791); 1 Stat. 189 (1791).
  30. 2 Stat. 701, 703 (1812).
  31. Coyle v. Smith, 221 U.S. 559, 567 (1911).
  32. Id.; accord 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 Ass'n, 142 U.S. 161, 183 (1891); Weber v. Harbor Commissioners, 85 U.S. (18 Wall.) 57, 65 (1873).
  33. 44 U.S. (3 How.) 212 (1845); see also 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.) 589 (1845).
  34. Pollard's Lessee, 44 U.S. at 219-20.
  35. 3 Stat. 489, 492 (1819).
  36. Pollard's Lessee, 44 U.S. at 219.
  37. Id. at 228-29.
  38. Id.; see also id. at 222-23.
  39. Coyle v. Smith, 221 U.S. 559, 579 (1911); 34 Stat, 267, 269 (1906).
  40. Coyle, 221 U.S. at 568.
  41. Id. at 567.
  42. 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).
  43. Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886).
  44. Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); Escanaba & Lake Mich. Transp. Co. v. City of Chicago, 107 U.S. 678, 689 (1883); 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).
  45. Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 176 (1892).
  46. See South Carolina v. Katzenbach, 383 U.S. 301, 328-29 (1966) ("The doctrine of the equality of States . . . applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared." (citations omitted)).
  47. See, e.g., Franchise Tax Bd. v. Hyatt, 136 S. Ct. 1277, 1282 (2016); Shelby Cnty. v. Holder, 570 U.S. 529 (2013) (citing Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)); see also Tenth Amend.: Equal Sovereignty Doctrine.
  48. See Art. IV, Sec. 3, Cl. 2: Power of Congress over Territories.
  49. See Art. I, Section 8 Enumerated Powers.
  50. Coyle v. Smith, 221 U.S. 559, 568 (1911).
  51. See id.
  52. See, e.g., 1 Stat. 50, 53 (1798).
  53. See, e.g., 13 Stat. 30, 31 (1864) (conditions for Nevada's constitution); 2 Stat. 173, 174 (1802) (conditions for Ohio's constitution); see generally Permoli v. Municipality No. 1 of City of New Orleans, 44 U.S. 589 (1845).
  54. Coyle, 221 U.S. at 568.
  55. See Bolln v. Nebraska, 176 U.S. 83, 89 (1900).
  56. Coyle, 221 U.S. at 573-74.
  57. See, e.g., Stearns v. Minnesota, 179 U.S. 223 (1900) (regulation of federal lands); United States v. Sandoval, 231 U.S. 28 (1913) (regulating commerce with Indian tribes); 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 the interstate Commerce Clause).
  58. Article VI Supreme Law; see Art. VI, Cl. 2: Overview of Supremacy Clause.
  59. Coyle, 221 U.S. at 574.
  60. "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. 576, 590-92 (2012). 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. Id. at 594-60; see also United States v. Utah, 283 U.S. 64 (1931).
  61. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 476 (1988); Knight v. U.S. Land Ass'n, 142 U.S. 161, 183 (1891).
  62. 44 U.S. (3 How.) 212, 223 (1845); see also Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410 (1842).
  63. See, e.g., PPL Montana, LLC, 565 U.S. 576; Phillips Petroleum Co., 484 U.S. 469; Utah Div. of State Lands v. United States, 482 U.S. 193 (1987); Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977); Texas v. Louisiana, 410 U.S. 702 (1973); Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973), overruled by Corvallis Sand & Gravel Co., 429 U.S. 363 (1977); Utah v. United States, 403 U.S. 9 (1971); Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892); Hallett v. Beebe, 54 U.S. (13 How.) 25 (1851); Pollard v. Kibbe, 50 U.S. (9 How.) 471 (1850).
  64. Shively v. Bowlby, 152 U.S. 1, 48 (1894); see also Joy v. St. Louis, 201 U.S. 332 (1906). Shively explained that the United States might make such transfers "whenever it becomes necessary to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states" or "in case of some international duty or public exigency." 152 U.S. at 48, 50.
  65. Utah Div. of State Lands, 482 U.S. at 197; Choctaw Nation v. Oklahoma, 397 U.S. 620, 634-35 (1970).
  66. See, e.g., Alaska v. United States, 545 U.S. 75, 100 (2005) (United States reserved title to submerged lands under Glacier Bay); Idaho v. United States, 533 U.S. 262, 280-81 (2001) (United States reserved title to submerged lands under Lake Coeur d'Alene, in trust for the Coeur d'Alene Tribe); United States v. Alaska, 521 U.S. 1, 62 (1997) (United States reserved title to submerged lands beneath tidally influenced waters within the Arctic National Wildlife Refuge).
  67. Montana v. United States, 450 U.S. 544, 552 (1981).
  68. Alaska, 545 U.S. at 78-79.
  69. Id. at 100.
  70. Alaska, 521 U.S. at 34 (quoting United States v. Holt State Bank, 270 U.S. 49, 55 (1926)).
  71. United States v. California, 332 U.S. 19, 38 (1947); accord United States v. Louisiana, 339 U.S. 699 (1950).
  72. California, 332 U.S. at 38.
  73. Id. at 31, 36.
  74. 339 U.S. 707, 716 (1950); see also United States v. Maine, 420 U.S. 515 (1975) (reaffirming the California, Louisiana, and Texas cases).
  75. Texas, 339 U.S. at 718.
  76. 67 Stat. 29 (1953) (codified as amended at 43 U.S.C. §§ 1301-1315). The Court upheld the constitutionality of the Submerged Lands Act in Alabama v. Texas, 347 U.S. 272 (1954).
  77. 67 Stat. 462 (1953) (codified as amended at 43 U.S.C. §§ 1331-1356b).
  78. 43 U.S.C. §§ 1301(a)(1), 1311; see generally United States v. Alaska, 521 U.S. 1, 5-6 (1997); United States v. Louisiana, 363 U.S. 1, 6-10 (1960).
  79. 43 U.S.C. §§ 1331-32; see generally Parker Drilling Mgmt. Servs. v. Newton, No. 18-389, slip op. at 3-4 (U.S. June 10, 2019).
  80. See Alaska v. United States, 545 U.S. 75, 78-79 (2005).
  81. Art. I, Sec. 8, Clause 2 Borrowing; see Art. I, Sec. 8, Cl. 3: Scope of Commerce Clause Authority and Indian Tribes.
  82. Art. II, Section 1 Function and Selection; see Art. II, Sec. 2, Cl. 2: Scope of Treaty-Making Power.
  83. See Dick v. United States, 208 U.S. 340. 405-06 (1908); accord Johnson v. Gearlds, 234 U.S. 422, 439 (1914); United States v. Sandoval, 231 U.S. 28, 47 (1913); Ex parte Webb, 225 U.S. 663 (1912).
  84. Sandoval, 231 U.S. at 49.
  85. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999); United States v. Winans, 198 U.S. 371, 378 (1905). The Supreme Court formerly held to the contrary in Ward v. Race Horse, which had applied the equal footing doctrine to find that a treaty granting hunting rights to certain tribes was implicitly extinguished by Wyoming's admission as a state. 163 U.S. 504, 515-16 (1896), overruled by Herrera v. Wyoming, No. 17-532 (U.S. May 20, 2019). The Court later explained that Race Horse "rested on a false premise" that state sovereignty over natural resources was an area of exclusive state jurisdiction. Mille Lacs, 526 U.S. at 204. Rather, "[a]lthough States have important interests in regulating wildlife and natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers, such as treaty making." Id. In Herrera v. Wyoming, the Court definitively overruled the equal footing holding of Race Horse. See Herrera, slip op. at 11.
  86. Herrera, slip op. at 13-14; see also Mille Lacs, 526 U.S. at 206-07.
  87. See Idaho v. United States, 533 U.S. 262, 272-74 (2001); Montana v. United States, 450 U.S. 544, 551-52 (1981); see also United States v. State of Oregon, 295 U.S. 1, 14 (1935); United States v. Holt State Bank, 270 U.S. 49, 54-55 (1926).
  88. United States v. McBratney, 104 U. S. 621, 623-24 (1882); accord Draper v. United States, 164 U.S. 240, 245-247 (1896).
  89. Oklahoma v. Castro-Huerta, No. 21-429, slip op. at 7 (U.S. June 29, 2022).
  90. Id. at 6-7, 25.
  91. Id. at 23 (citing Draper, 164 U.S. at 242-43).
  92. See, e.g., 36 Stat. 557, 565-65 (1910) (treatment of cases pending in New Mexican territorial courts after state admission).
  93. See Art. IV, Sec. 3, Cl. 2: Power of Congress over Territories. The federal courts of the District of Columbia and territory of Puerto Rico, however, are Article III courts. See Art. III, Sec. 1: District of Columbia and Territorial Courts.
  94. Benner v. Porter, 50 U.S. 235, 242 (1850); see generally Art. III, Sec. 1: Overview of Relationship Between Federal and State Courts; Art. III, Sec. 1: Doctrine on Federal and State Courts.
  95. Baker v. Morton, 79 U.S. (12 Wall.) 150, 153 (1871).
  96. Id.
  97. John v. Paullin, 231 U.S. 583 (1913).
  98. Hunt v. Palao, 45 U.S. (4 How.) 589 (1846).
  99. Benner, 50 U.S. (9 How.) at 245-46.
  100. Freeborn v. Smith, 69 U.S. (2 Wall.) 160 (1865).