Chapter LXVII: Section 3: 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.

Doctrine of the Equality of the States

"Equality of constitutional right and power is the condition of all the States of the Union, old and new."[221] 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."[222] 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."[223] Nonetheless, after further expressions of opinion _pro_ and _con_, the Convention voted nine States to two to delete the requirement of equality.[224] 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.[225] With the admission of Louisiana in 1812, the principle of equality was extended to States created out of territory purchased from a foreign power.[226] By the Joint Resolution of December 29, 1845, Texas "was admitted into the Union on an equal footing with the original States in all respects whatever."[227] Again and again, 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.[228] Finally, in 1911, it 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.[229] 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."[230]

EARLIER SCOPE OF THE DOCTRINE

Until recently, however, the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or property rights.[231] Broadly speaking, every new State is entitled to exercise all the powers of government which belong to the original States of the Union.[232] It acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property throughout its limits except where it has ceded exclusive jurisdiction to the United States.[233] The legislative authority of a newly admitted State extends over federally owned land within the State, to the same extent as over similar property held by private owners, save that the State can enact no law which would conflict with the constitutional powers of the United States. Consequently it has jurisdiction to tax private activities carried on within the public domain, if the tax does not constitute an unconstitutional burden on the Federal Government.[234] 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.[235] 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.[236] But the constitutional authority of Congress to regulate commerce with Indian tribes is not inconsistent with the equality of new States,[237] and conditions inserted in the New Mexico Enabling Act forbidding the introduction of liquor into Indian territory were therefore valid.[238]

CITIZENSHIP OF INHABITANTS

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.[239]

JUDICIAL PROCEEDINGS

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 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 that option under existing law.[240] 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.[241] 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 procedure.[242] The new State cannot, without the express or implied assent of Congress, 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.[243]

PROPERTY RIGHTS: UNITED STATES _v._ TEXAS

Holding that a "mere agreement in reference to property" involved "no question of equality of status," the Supreme Court upheld, in Stearns _v._ Minnesota,[244] a promise exacted from Minnesota upon its admission to the Union which was interpreted to limit its right to tax lands held by the United States at the time of admission and subsequently granted to a railroad. The "equal footing" doctrine has had an important effect, however, on the property rights of new States to soil under navigable waters. In Pollard _v._ Hagan,[245] 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 waters passes to a new State upon admission. After refusing to extend the inland-water rule of this case to the three mile marginal belt under the ocean along the coast,[246] the Court applied the principle of the Pollard Case in reverse in United States _v._ Texas.[247] Since 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 admission[248] has been qualified.

RIGHTS CONVEYED TO PRIVATE PERSONS BEFORE ADMISSION OF A STATE

While the territorial status continues, the United States has power to convey property rights, such as rights in soil below high-water mark along navigable waters,[249] or the right to fish in designated waters,[250] 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.[251]

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.

Property of the United States

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,[252] 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."[253] 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.[254]

PUBLIC LANDS

No appropriation of public lands may be made for any purpose except by authority of Congress.[255] However, the long-continued practice of withdrawing land from the public domain by Executive Orders for the purpose of creating Indian reservations has raised an implied delegation of authority from Congress to take such action.[256] The comprehensive authority of Congress over public lands includes the power to prescribe the times, conditions and mode of transfer thereof, and to designate the persons to whom the transfer shall be made;[257] to declare the dignity and effect of titles emanating from the United States;[258] to determine the validity of grants which antedate the government's acquisition of the property;[259] to exempt lands acquired under the homestead laws from previously contracted debts;[260] to withdraw land from settlement and to prohibit grazing thereon;[261] to prevent unlawful occupation of public property and to declare what are nuisances, as affecting such property, and provide for their abatement;[262] and to prohibit the introduction of liquor on lands purchased and used for an Indian colony.[263] Congress may limit the disposition of the public domain to a manner consistent with its views of public policy. A restriction inserted in a grant of public lands to a municipality which prohibited the grantee from selling or leasing to a private corporation the right to sell or sublet water or electric energy supplied by the facilities constructed on such land was held valid.[264]

THE POWER OF THE STATE

No State can tax public lands of the United States within its borders;[265] nor can State legislation interfere with the power of Congress under this clause or embarrass its exercise.[266] The question whether title to land which has once been the property of the United States has passed from it must be resolved by the laws of the United States; after title has passed, "that property, like all other property in the State, is subject to State legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States."[267] In construing a conveyance by the United States of land within a State, the settled and reasonable rule of construction of the State affords a guide in determining what impliedly passes to the grantee as an incident to land expressly granted.[268] But a State statute enacted subsequently to a federal grant cannot be given effect to vest in the State rights which either remained in the United States or passed to its grantee.[269]

POWER OF CONGRESS OVER THE TERRITORIES

In the territories, Congress has the entire dominion and sovereignty, national and local, and has full legislative power over all subjects upon which a State legislature might act.[270] It may legislate directly with respect to the local affairs of a territory or it may transfer that function to a legislature elected by the citizens thereof,[271] which will then be invested with all legislative power except as limited by the Constitution of the United States and acts of Congress.[272] In 1886, Congress prohibited the enactment by territorial legislatures of local or special laws on enumerated subjects.[273] The constitutional guarantees of private rights are applicable in territories which have been made a part of the United States by Congressional action,[274] but not to unincorporated territories.[275] Alaska is of the former description,[276] while the status of Hawaii appears to be doubtful.[277] Congress may establish, or may authorize the territorial legislature to create, legislative courts whose jurisdiction is derived from statutes enacted pursuant to this section rather than from article IV.[278] Such courts may exercise admiralty jurisdiction despite the fact that such jurisdiction may be exercised in the States only by constitutional courts.[279]