admitted California to the Union ratified the territorial boundary thus defined; and that California was admitted "on an equal footing with the original States in all respects whatever," 9 Stat. 452. With these premises admitted, California contends that its ownership follows from the rule originally announced in Pollard's Lessee v. Hagan, 3 How. 212; see also Martin v. Waddell, 16 Pet. 367, 410. In the Pollard case it was held, in effect, that the original states owned in trust for their people the navigable tidewaters between high and low water mark within each state's boundaries, and the soil under them, as an inseparable attribute of state sovereignty. Consequently, it was decided that Alabama, because admitted into the Union on "an equal footing" with the other states, had thereby become the owner of the tidelands within its boundaries. Thus the title of Alabama's tidelands grantee was sustained as valid against that of a claimant holding under a United States grant made subsequent to Alabama's admission as a state.

8

The Government does not deny that under the Pollard rule, as explained in later cases, California has a qualified ownership of lands under inland navigable waters such as rivers, harbors, and even tidelands down to the low water mark. It does question the validity of the rationale in the Pollard case that ownership of such water areas, any

See e. g., Manchester v. Massachusetts, 139 U. S. 240; Louisiana v. Mississippi, 202 U. S. 1; The Abby Dodge, 223 U. S. 166. See also United States v. Mission Rock Co., 189 U. S. 391; Borax, Ltd. v. Los Angeles, 296 U. S. 10.

Although the Pollard case has thus been generally approved many times, the case of Shively v. Bowlby, 152 U. S. 1, 47-48, 58, held, contrary to implications of the Pollard opinion, that the United States could lawfully dispose of tidelands while holding a future state's land "in trust" as a territory.

See United States v. Commodore Park, 324 U. S. 386, 390, 391; Scranton v. Wheeler, 179 U. S. 141, 159, 160, 163; Stockton v. Baltimore & N. Y. R. Co., 32 F. 9, 20; see also United States v. ChandlerDunbar Co., 229 U.S. 53.

"

more than ownership of uplands, is a necessary incident of the state sovereignty contemplated by the "equal footing" clause. Cf. United States v. Oregon, 295 U. S. 1, 14. For this reason, among others, it argues that the Pollard rule should not be extended so as to apply to lands under the ocean. It stresses that the thirteen original colonies did not own the marginal belt; that the Federal Government did not seriously assert its increasingly greater rights in this area until after the formation of the Union; that it has not bestowed any of these rights upon the states, but has retained them as appurtenances of national sovereignty. And the Government insists that no previous case in this Court has involved or decided conflicting claims of a state and the Federal Government to the three-mile belt in a way which requires our extension of the Pollard inland water rule to the ocean area.

It would unduly prolong our opinion to discuss in detail the multitude of references to which the able briefs of the parties have cited us with reference to the evolution of powers over marginal seas exercised by adjacent countries. From all the wealth of material supplied, however, we cannot say that the thirteen original colonies separately acquired ownership to the three-mile belt or the soil under it, even if they did acquire elements of the sovereignty of the English Crown by their revolution against it. Cf. United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 316.

10 A representative collection of official documents and scholarship on the subject is Crocker, The Extent of the Marginal Sea (1919). See also I Azuni, Maritime Law of Europe (published 1806) c. II; Fulton, Sovereignty of the Sea (1911); Masterson, Jurisdiction in Marginal Seas (1929); Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927); Fraser, The Extent and Delimitation of Territorial Waters, 11 Corn. L. Q. 455 (1926); Ireland, Margina! Seas Around the States, 2 La. L. Rev. 252, 436 (1940); Comment, Conflicting State and Federal Claims of Title in Submerged Lands of the Continental Shelf, 56 Yale L. J. 356 (1947).

At the time this country won its independence from England there was no settled international custom or understanding among nations that each nation owned a three-mile water belt along its borders. Some countries, notably England, Spain, and Portugal, had, from time to time, made sweeping claims to a right of dominion over wide expanses of ocean. And controversies had arisen among nations about rights to fish in prescribed areas." But when this nation was formed, the idea of a three-mile belt over which a littoral nation could exercise rights of ownership was but a nebulous suggestion." Neither the English charters granted to this nation's settlers,13 nor the treaty of peace with England," nor any other document to which we have been referred, showed a purpose to set apart a three-mile ocean belt for colonial or state ownership." Those who settled this country were interested in lands upon which to live, and waters upon which to fish and sail. There is no substantial support in history for the idea that they wanted or claimed a right to block off

"See, e. g., Fulton, op. cit. supra, 3-19, 144-145; Jessup, op. cit. supra, 4.

12 Fulton, op. cit. supra, 21, says in fact that "mainly through the action and practice of the United States of America and Great Britain since the end of the eighteenth century, the distance of three miles from shore was more or less formally adopted by most maritime states as ... more definitely fixing the limits of their jurisdiction and rights for various purposes, and, in particular, for exclusive fishery."

13 Collected in Thorpe, Federal and State Constitutions (1909). 14 Treaty of 1783, 8 Stat. 80.

15 The Continental Congress did for example authorize capture of neutral and even American ships carrying British goods, "if found within three leagues [about nine miles] of the coasts." Journ. of Cong. 185, 186, 187 (1781). Cf. Declaration of Panama of 1939, 1 Dept. of State Bull. 321 (1939), claiming the right of the American Republics to be free from a hostile act in a zone 300 miles from the American coasts.

the ocean's bottom for private ownership and use in the extraction of its wealth.

It did happen that shortly after we became a nation our statesmen became interested in establishing national dominion over a definite marginal zone to protect our neutrality." Largely as a result of their efforts, the idea of a definite three-mile belt in which an adjacent nation can, if it chooses, exercise broad, if not complete dominion, has apparently at last been generally accepted throughout the world," although as late as 1876 there was still considerable doubt in England about its scope and even its existence. See The Queen v. Keyn, 2 Ex. D. 63. That the political agencies of this nation both claim and exercise broad dominion and control over our three-mile marginal belt is now a settled fact. Cunard Steamship Co. v. Mellon, 262 U. S. 100, 122-124.1

16 Secretary of State Jefferson in a note to the British minister in 1793 pointed to the nebulous character of a nation's assertions of territorial rights in the marginal belt, and put forward the first official American claim for a three-mile zone which has since won general international acceptance. Reprinted in H. Ex. Doc. No. 324, 42d Cong., 2d Sess. (1872) 553-554. See also Secretary Jefferson's note to the French Minister, Genet, reprinted American State Papers, I Foreign Relations (1833), 183, 184; Act of June 5, 1794, 1 Stat. 381; 1 Kent, Commentaries, 14th Ed., 33–40.

17

"See Jessup, op. cit. supra, 66; Research in International Law, 23 A. J. I. L. 249, 250 (Spec. Supp. 1929).

18 See also Church v. Hubbart, 2 Cranch 187, 234. Congressional assertion of a territorial zone in the sea appears in statutes regulating seals, fishing, pollution of waters, etc. 36 Stat. 326, 328; 43 Stat. 604, 605; 37 Stat. 499, 501. Under the National Prohibition Act, territory including “a marginal belt of the sea extending from lowwater mark outward a marine league, or 3 geographical miles" constituting the "territorial waters of the United States" was regulated. See U. S. Treas. Reg. 2, §2201 (1927), reprinted in Research in International Law, supra, 250; 41 Stat. 305. Anti-smuggling treaties in which foreign nations agreed to permit the United States to pursue smugglers beyond the three-mile limit contained express stipulations

33-388 - 69-4

And this assertion of national dominion over the threemile belt is binding upon this Court. See Jones v. United States, 137 U. S. 202, 212-214; In re Cooper, 143 U. S. 472, 502-503.

Not only has acquisition, as it were, of the three-mile belt been accomplished by the National Government, but protection and control of it has been and is a function of national external sovereignty. See Jones v. United States, 137 U. S. 202; In re Cooper, 143 U. S. 472, 502. The belief that local interests are so predominant as constitutionally to require state dominion over lands under its land-locked navigable waters finds some argument for its support. But such can hardly be said in favor of state control over any part of the ocean or the ocean's bottom. This country, throughout its existence has stood for freedom of the seas, a principle whose breach has precipitated wars among nations. The country's adoption of the threemile belt is by no means incompatible with its traditional insistence upon freedom of the sea, at least so long as the national Government's power to exercise control consistently with whatever international undertakings or commitments it may see fit to assume in the national interest

that generally the three-mile limit constitutes "the proper limits of territorial waters." See e. g., 43 Stat. 1761 (Pt. 2).

There are innumerable executive declarations to the world of our national claims to the three-mile belt, and more recently to the whole continental shelf. For references to diplomatic correspondence making these assertions, see 1 Moore, International Law Digest (1906) 705, 706, 707; 1 Wharton, Digest of International Law (1886) 100. See also Hughes, Recent Questions and Negotiations, 18 A. J. I. L. 229 (1924).

The latest and broadest claim is President Truman's recent proclamation that the United States "regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. . . ." Exec. Proc. 2667, Sept. 28, 1945, 10 F. R. 12303.