United States v. Louisiana Essay Example

PETITIONER:United States
RESPONDENT:Louisiana
LOCATION:Kingsley Books, Inc.

DOCKET NO.: 11 ORIG
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 354 US 515 (1957)
ARGUED: Apr 08, 1957
DECIDED: Jun 24, 1957

Facts of the case

Question

  • Oral Argument – April 08, 1957 (Part 1)
  • Audio Transcription for Oral Argument – April 08, 1957 (Part 1) in United States v. Louisiana

    Audio Transcription for Oral Argument – April 08, 1957 (Part 2) in United States v. Louisiana

    W. Scott Wilkinson:

    Mr. Chief Justice, and may it please the Court.

    The Attorney General of Louisiana made an opening statement to outline briefly the points on which Louisiana relies in this case, leaving to me the matter of making the main argument and answering the questions that the Court may have propound in that connection.

    I would like to take up where the United States Attorney General left off which will permit me more or less to go chronologically into the argument of the case.

    That is, I would like to start on the proposition that, at the time of or prior to the time that Louisiana entered into the Union, its boundaries were three leagues or more from its coast in the Gulf of Mexico.

    In that connection, let me comment, first, upon the letter of the Secretary of State which the Solicitor General says is conclusive on the Court.

    To me, that is an unheard of proposition that a plaintiff from the case may bring his suit before Court to ask a Court to adjudicate on the location of certain boundaries.

    Then, after the answer of the defendant is filed, to write to another official of the Government and ask that official of the Government to state where those boundaries are, and to present that reply to this Court and to say that that decides the case.

    It isn’t necessary to have this Court if that is so.

    That is not so.

    Hugo L. Black:

    Well, do you mean if we accepted what he said that would decide the case against him?

    W. Scott Wilkinson:

    If Mr. — I wouldn’t say even that because I’m going into Mr. Dulles’ letter in just a minute to read a part of it that the Solicitor General did not read to the Court.

    I know he didn’t leave that out intentionally because neither of us have time to go into everything we might choose to say to Your Honors.

    It would take too much time to do that.

    First, I do want to say this.

    Opposing counsel referred to the political branches of the Government.

    He continued to refer to the political branches of the Government.

    There’s not just one, they are two the Legislative Branch and the Executive Branch.

    There’s never been a treaty entered into by the United States.

    It was not negotiated by the Executive Department and concurred in by a two-thirds vote of the Senate.

    Those are the political branches of the Government, and this case has specifically said so that our foreign relations — in the (Inaudible) case that’s quoted in our brief that the foreign relations of this nation are vested in the political departments of the Government – the Legislative and the Executive.

    And, it would be, indeed, a noble situation if either one of these two had the sole right to interpret the meaning of a treaty or a meaning of an Act of Congress.

    That is a judicial matter for this Court to determine.

    It is true that there have been cases where the position of the United States and International Affairs has been declared to be thus and so by the Executive Department of the Government, such as where the boundary between the United States and Spain may have been at a certain time, and the Court has refused to go behind that statement and on this theory.

    That for the — for the Executive Department of the Government to say to a foreign nation “our boundary is here,” and then this Court to come and say that it isn’t there, there could be no stability in our Government.

    But, in matters relating between the United States and a state, and this Court so said that in an early case of United States versus Texas which we cite in our brief here, in matters of determining boundaries as between the United States and a state or as between the states of the Union, those are matters to be determined by the judiciary.

    And, to close this part of my argument as quickly as I may, I would simply like to read this short statement made by this Court in the case of In re Cooper, reported on 143 US 472, also cited in our brief.

    Without the clear — this is what this Court said.

    “Without the clear authority of the law of commerce, the Executive can never, by determining a so-called political question or by construing an Act of Congress or a treaty, conclude the rights of persons or property under the protection of the Constitution and laws of the United States in a determination of these rights.”

    And, that is exactly the situation here.

    You’re asked to determine the rights of the State of Louisiana on the say so of the Executive Department of the Government and without reference to what Congress may have said.

    Felix Frankfurter:

    Mr. Wilkinson.

    W. Scott Wilkinson:

    Yes, sir?

    Felix Frankfurter:

    All I get out of Secretary Dulles’ letter, I’ve indicated I’ve seen that controlling on this case.

    What the attitude of this country is, these are the other countries in asserting its right on the matter of the pleading.

    W. Scott Wilkinson:

    Yes, sir.

    Felix Frankfurter:

    Therefore, matters of declarations by the Secretary of State, passed the international policy of the Government which, for me, doesn’t foreclose the questions in this case at all.

    W. Scott Wilkinson:

    I think that’s exactly what the Court said in —

    Felix Frankfurter:

    Now, if that — if that’s foreclosed, whether or not, international law, whether that’s the their meaning, that the Government of the United States, according to the Secretary of State, speaks with authority and conclusively on that point, that the Government of the United States had, from the day it sent this down, maintained that its attitude and intonations with other nation what right it claims on the seas.

    W. Scott Wilkinson:

    I don’t think it’s maintained that attitude.

    Reading Secretary Dulles’ letter here, we find that Thomas Jefferson made his statement in 1793.

    That is quoted.

    Then, he skips over to 1868 where he quotes a statement from Secretary of State Seward.

    What Jefferson did say in 1793 under the pressure of a war between European nations when America was a weak nation that had just achieved its independence was this.

    The greatest distance to which any respectable assent among nations had been at any time given has been the extent of the human sight estimated at upward of 20 miles and the smallest distance, I believe, claimed by any nation, or whatever, is a range of cannonball usually stated at one sea league.

    Some intermediate distances also have been insisted on and that of three sea leagues has some authority in its favor.

    Now, here’s what he goes on to say with reference to the United States.

    The character of our coast, remarkable and considerable parts of it — and certainly remarkable in that part that deals with the State of Louisiana where the coastline has measured 467 miles along the line between seaward waters in the open sea and 7793 miles when you follow all the sinuosities of the coast and the islands and the bays and the inlets and such, the character of our coast remarkable and considerable parts of it were admitting no vessels of size to pass near the shores would entitle us in reason to as broad marginal protected navigation as any nation, whatever.

    And, he says, for the present, we will be restrained in to distance of one sea league.

    He, after, would had repudiated that statement.

    He, after — that is, he repudiated the idea that that three miles had been fixed or agreed upon as a national boundary.

    And, Your Honors will not find any single treaty entered into by the United States wherein the territorial waters were limited to three miles, nor will you find it any — in any Act of Congress, until the passage of the Submerged Lands Act and the Outer Continental Shelf Lands Act in 1953, if those Acts could be construed to have that meaning and, of course, we say they do not.

    Felix Frankfurter:

    But, internationally, the claim or the position of the United States in matters of the international law, so-called, are not to be found merely in treaties.

    W. Scott Wilkinson:

    That’s right.

    Felix Frankfurter:

    It would be found in the continuous practice of the Government.

    W. Scott Wilkinson:

    Yes, sir, that’s — that’s correct.

    And, I would be glad to go into the continuous practice of the Government particularly with regard to the Gulf of Mexico because we have to bear in mind that when Louisiana was admitted to the Union, the Gulf of Mexico occupied quite a different status than it occupies today.

    The Gulf of Mexico, then, was an enclosed sea.

    As a matter of fact, up until 1800, the whole circumference of the Gulf was owned by the Kingdom of Spain.

    Not another Union — not another nation in the United States had a foot of ground boarding on the Gulf of Mexico prior to 1800 when Spain retroceded the territory of Louisiana to France and then, in 1803, when France ceded it to the United States.

    Just before that occurred, Spain owned the entire circumference of the Gulf of Mexico.

    W. Scott Wilkinson:

    There never been any big battles fought in the Gulf of Mexico.

    As a matter of fact, I only remember one naval engagement in the war between the states when a car gets fleet to take Mobile Bay and, the other, when the marines attacked at Veracruz.

    The big battles of the world have been fought on the Atlantic and the Pacific Oceans in all time.

    The Atlantic Ocean then was a great avenue and the great highway of commerce in the world.

    The Gulf of Mexico was an enclosed sea.

    And, Your Honors will find, in reading the statements of the Secretaries of State of the United States, all along, many of those statements are qualified by the statement that this Government has subscribed to the principle of a territorial limit of three miles on our eastern coast.

    And, of course, that’s because there was a difference and there should be a difference between our eastern coast and the Gulf of Mexico.

    Now, the Act of Admission of Louisiana into the Union in 1812 describes its limits as being bounded on the south by the Gulf of Mexico including all islands within three leagues of its coast.

    This Act of Admission was antedated by the Act creating the Territory of Orleans in 1804.

    The territory of Orleans, after, what became the State of Louisiana.

    That Act creating the Territory of Orleans described the boundaries of Louisiana as being all — Territory of Orleans as being all that part of the Territory of Louisiana briefly south of the 33rd parallel of latitude, which is a present northern boundary of the State of Louisiana was, that, without any exception, without the reservation of any seas, islands, submerged lands or waters or anything of that nature.

    The Enabling Act or Act of 1811 provided that the State of Louisiana might be incorporated into a state in the Union, admitted on an equal footing with other states, comprising all that Territory of Louisiana within the following limits, and then, proceed to detail description ending up including all islands within three leagues of its shore — coast, I mean.

    Well, I’m not sure if it’s a coast.

    Now, our — our position on that subject is this.

    That either that means that our limits, our three leagues from the coast or else, that is not a clear description.

    We say that the Act has been interpreted by the acts, by the contemporary construction over a long period of time, by the legislature and by the officials of Louisiana, as well as by the actions of the United States Commerce.

    The citizens of Louisiana had, from time and memorial, made use of the oyster beds and leased them for private exploitation in the Gulf of Mexico, three leagues and even beyond three leagues from the shores of Louisiana and within the mine shown on the map here as the Louisiana boundary of the Act 33 of 1954.

    The shoaled of the State of Louisiana come out into the Golf here, as far out as what they call the coastguard line.

    There are places there where there are less than two fathoms in depth.

    That is a very narrow coast and, the coast there, the coast line changes sometimes from day to day.

    In the case of a great storm, their coastline has been washed inland by the action of the storm and the waves to take off as much a half-a mile at a time.

    We have an island on the shoreline of Louisiana.

    Timbalier Island has actually moved sideways and northwestern — northwesterly, positioned nine miles such the state entered into the Union.

    It’s an unusual coastline.

    Louisiana passed laws and, throughout its history, has passed laws and enforced laws not only leasing the bed of the Gulf of Mexico for oysters and for regulating the trawling for shrimp and, by the way, shrimp are sedentary fishes.

    They are the natural resources of the seabed and the subsoil according to many definitions.

    Those operations go 40 and 50 miles off shore.

    These are facts Your Honor can take — Your Honors can’t take judicial notice of all these facts.

    We think there is enough of a complication here in the coast of the State Louisiana and in the manner in which the state — the coast of the state has been occupied, out three leagues and beyond three leagues in the Gulf of Mexico, makes it necessary and desirable that testimony of witnesses be taken to show the contemporaneous construction of the meaning of the Act of Admission of Louisiana for the past 145 years to this very day.

    That’s what we ask for in our motion to take the depositions of witnesses.

    W. Scott Wilkinson:

    There are records of the state, the various departments of the state, there are testimony of living witnesses.

    There are also treaties, if Your Honors please, between foreign nations relating not only to the coast of Louisiana but to the other coasts of the United States of which this Court will not take judicial notice.

    We must have those treaties certified as true and correct copies and filed in the Court in evidence.

    We think that the type of testimony that needs to be taken in this Court or in the courts is one that should more properly call for a thorough investigation and hearing of the case by a district judge and then to be brought up to this Court in a logical and ordinary way.

    We found out that cases of that kind can be brought up here a lot quicker and decided a lot quicker than the California case which was referred to a master almost 10 years ago and hasn’t fully been decided yet.

    Felix Frankfurter:

    I don’t understand why we can’t get judicial notice of every class of evidence on which you — to which you appeal, except living witness — testimony of living witness.

    Isn’t there a general provision about certain crimes and public documents to the Court?

    Are these treaties, aren’t they included in official volumes?

    W. Scott Wilkinson:

    I don’t know that they are.

    Now, a lot of treaties are.

    There are treaties that are official —

    Felix Frankfurter:

    Between what parties are these?

    W. Scott Wilkinson:

    France and England and Spain, some between all the European powers.

    Felix Frankfurter:

    And these treaties preceding the admission —

    W. Scott Wilkinson:

    Preceding the admission of Louisiana to the Union and all of —

    Felix Frankfurter:

    All the treaties?

    W. Scott Wilkinson:

    None of those treaties are less provided for territorial waters less than three leagues.

    Now, I say territorial waters.

    It wasn’t written thus — just those themselves.

    In those days, the great value of territorial waters to a nation was the fish in those territorial waters, the right to exclude other nationals from fishing in those waters.

    So, of necessity, these old treaties naturally refer largely to fishing.

    Some of them refer to navigation, too, because, of course, navigation within a certain distance of your shore can make a pretext for taking fish and, if you have a treaty which prohibits that, then of course, you want to also prohibit navigation within that distance from your shore, except by permission.

    I —

    Hugo L. Black:

    Why do you say that the evidence of the shrinking would be able to prove what is under the Act?

    W. Scott Wilkinson:

    That is occupation and possession, if Your Honor please, of the bed of the Gulf of Mexico over a long period of time.

    That makes that true.

    Hugo L. Black:

    What is the issue?

    W. Scott Wilkinson:

    The issue is the extent to which the boundaries of Louisiana can be considered to have extended by a feature of this very Act of Admission.

    We — we can — we can take the Act of Admission and, from that Act of Admission, we can prove facts that will show a proper construction of that Act to mean that the Louisiana boundary, at the time of its admission to the Union, was three leagues from its coast.

    Felix Frankfurter:

    May I trouble you to turn to the Act of Admission and state more specifically what ambiguous term in that Act of Admission would be illuminated by the testimony in which you would like to have made available.

    W. Scott Wilkinson:

    I do not state, Your Honor, that it is ambiguous.

    Felix Frankfurter:

    Well, I’ll —

    W. Scott Wilkinson:

    I say that —

    Felix Frankfurter:

    I mean, they prove your point.

    W. Scott Wilkinson:

    — the most that can be said is that it is ambiguous, and I will turn to that.

    That is on — the Enabling Act for Louisiana is on page 70 of the appendix filed by Louisiana.

    The Act of Admission to the Union is on page 71 of the appendix.

    The Enabling Act describes the limits of Louisiana.

    I don’t see anything in the portion of the Act of Admission here that describes the limits other than by reference to the Enabling Act.

    In the Enabling Act, it is provided, that the inhabitants of all that part of the territory or country ceded under the name of Louisiana by the Treaty made at Paris on the 30th day of April, 1803 between the United States and France contained within the following limits.

    That is to say, beginning at the mouth of the River Sabine, and thence proceeding up the Sabine River to the 33rd parallel, thence over to the Mississippi River, thence down the Mississippi River and, finally, ending up about the sixth line from the bottom of the page here, thence bounded by the said gulf to the place of beginning, including all islands within three leagues of the coast.

    The only reason I would say that that might be ambiguous is that the Government says that — that the phrase “including all islands within three leagues of the coast” doesn’t include all submerged lands within three leagues of the coast.

    We say it does and that it has always been so construed.

    Felix Frankfurter:

    Would the evidence — would the evidence give proof of that fact?

    W. Scott Wilkinson:

    Yes, sir.

    William J. Brennan, Jr.:

    But, Mr. Wilkinson, I had the impression the Government’s argument was “so, what?” even though you establish it.

    They’ll assume it and, yet, say you can’t go beyond three miles because that was the national thing.

    W. Scott Wilkinson:

    Yes, sir.

    Quote on —

    William J. Brennan, Jr.:

    At the time of your entry and, that being true, it’s immaterial that you establish your proposition, you know.

    W. Scott Wilkinson:

    Yes, sir.

    And, the only proof that he has that the national boundary in the Gulf of Mexico was only three miles is a letter of present Secretary of State written after this case had been put at issue and supported by quotations from Thomas Jefferson that I have read here —

    William J. Brennan, Jr.:

    Well, now assume —

    W. Scott Wilkinson:

    — and —

    William J. Brennan, Jr.:

    — assume his position conceding to you that you may be able to establish that it was three leagues.

    What, in the way of facts, would we have to hear to decide his proposition that, in any event, the national limit was three miles?

    W. Scott Wilkinson:

    I don’t know how the Government could prove that the limits were three miles.

    I have never seen any treaty.

    I have never seen any law.

    I have never seen any statement made by the Department of State in any communication that the international boundary in the Gulf of Mexico was only three miles.

    W. Scott Wilkinson:

    On the contrary, Your Honor, there are numerous treaties and there are statements by the Department of State.

    We quote them in our brief and I can pick them up in detail.

    That, in the Gulf of Mexico, the international boundary was three leagues, and it is so shown on maps that are in the Department of State, maps that are in the coast and geodetic survey offices, surveys, they’re shown in our map appendix which we filed here.

    We have reproduced and filed in our map appendix a map — a survey made that shows international boundary.

    A line drawn three leagues into the coast and —

    William J. Brennan, Jr.:

    Well, then —

    W. Scott Wilkinson:

    — as designated international boundary in three leagues and it would even tells you the depth at the end of that line is 27-and-three-tenths fathoms in depth in the Gulf of Mexico.

    William J. Brennan, Jr.:

    Well, I gather, then, that’s to say to me that taking the Government on its own terms.

    W. Scott Wilkinson:

    It —

    William J. Brennan, Jr.:

    There is still a fact question which you’re entitled to have resolved at the trial.

    W. Scott Wilkinson:

    Right, sir.

    Felix Frankfurter:

    But, suppose you do take the Government on its claim of law —

    W. Scott Wilkinson:

    We’ll, do it.

    Felix Frankfurter:

    Does it foreclose the question, namely, what was the Act of Congress in there?

    W. Scott Wilkinson:

    Oh, that’s right.

    That’s right, what does the Act of Congress mean, and I doubt, it doesn’t foreclose a question either as to how far Congress can go.

    Now, on the matter of — let me just say, while we’re on the subject of the boundaries of the United States, I think when Your Honors read the brief and consider the — the supporting facts in the brief with reference to the matter, that a boundary of the United States has been extended to the edge of the Continental Shelf.

    I don’t see how you can escape it.

    I don’t see how the provisions of the Outer Continental Shelf Act that was passed in — on August 7, 1953 mean anything else.

    Hugo L. Black:

    Suppose it has, what — how was that help in this issue?

    W. Scott Wilkinson:

    That would help in this case by referring to the jurisprudence of this Court over a number of years, wherein this Court has repeatedly and consistently held that the boundaries of the States are coterminous with the boundaries of the United States and, in the Continental United States, the United States owns no territory beyond the boundaries of the states.

    Now, there is a fine question there as to who —

    Hugo L. Black:

    Suppose Congress —

    W. Scott Wilkinson:

    — as to who goes first.

    Hugo L. Black:

    Decided to do so.

    W. Scott Wilkinson:

    Sir?

    Hugo L. Black:

    Suppose Congress decided to do so.

    Is it your contention that it could not constitutionally do that?

    Suppose it concluded that it wanted to take possession or control of some kind over 100 miles out in the ocean.

    Is it your contention that it would unconstitutional, but you say that’s too much because —

    W. Scott Wilkinson:

    Oh, no sir.

    Hugo L. Black:

    — United States?

    W. Scott Wilkinson:

    Oh, no sir.

    I do not say the United States cannot do that.

    The United States can do anything permissible by international law and of course, as far as our domestic welfare is concerned, it may disregard international law and go out to the middle of the Gulf of Mexico.

    If it owned all the Gulf of Mexico, like Philip of Spain back in 1563, Philip of Spain claimed and owned the entire Gulf of Mexico because Spain owned the entire circumference of the Gulf of Mexico.

    Charles E. Whittaker:

    If they do so, isn’t it your claim that you stand in the southern boundary of Louisiana a bargaining?

    W. Scott Wilkinson:

    Yes, sir.

    Exactly, sir.

    That is right and that is what this Court has said many times.

    This Court — I say this Court, of course, I mean the Supreme Court of the United States has, in the years gone by, gone further than that.

    In the case of Manchester versus Massachusetts, the Court stated that the states of the United States, the several states, insofar as their boundaries at sea were concerned, had the right, same rights of sovereignty possessed by other nations of the world, and that the states had the right to extend their boundaries to the full limit permitted by international law.

    And, that statement has never been overruled and has never been questioned by this Court, unless it — you may say it was questioned inferentially by Your Honors deciding these tidelands cases.

    You didn’t —

    Hugo L. Black:

    I have not made the question inferentially.

    W. Scott Wilkinson:

    Inferentially, yes, sir.

    It — it could not stand if the decisions of this Court stand in the California case, the Louisiana case, or the Texas case decided back in 1940 and 1950, respectively.

    Hugo L. Black:

    May I ask you just a question here.

    Did you take part in the hearings over the Senate on this bill?

    They have hearings?

    W. Scott Wilkinson:

    There were hearings, sir.

    I did not take part in them personally.

    Do you mean did Louisiana take part?

    Hugo L. Black:

    Did Louisiana did — at first, I was going to ask, I thought maybe you had represented Louisiana’s claims.

    W. Scott Wilkinson:

    No, sir.

    Hugo L. Black:

    Was — was the argument that you’ve been making to us about the boundaries presented in the hearing over there?

    W. Scott Wilkinson:

    Sir, I am sorry to say they were not made.

    I — I can explain why, except to say that I’ve been studying this case for two years and I think I found out a lot of facts that, perhaps, they hadn’t read at that time.

    I — I —

    Hugo L. Black:

    Can you just give —

    W. Scott Wilkinson:

    I don’t say that disparagingly to anybody else, but I do say that this — this problem here has involved quite a study of history of international law, constitutional law, domestic law, common law.

    The whole theory of our constitutional form of —

    Hugo L. Black:

    But was there any —

    W. Scott Wilkinson:

    — Government is involved in this question.

    Hugo L. Black:

    In — was there any extended comments made in connection with Louisiana’s claims of three leagues instead of the three miles?

    W. Scott Wilkinson:

    Oh, yes.

    There — there were statements made about the three-league boundary and there were also statements made that — by Governor Keenan, as I recall, that the boundaries of Louisiana went — that Louisiana had a right to claim the whole continental shelf at that time.

    I think —

    Hugo L. Black:

    Wherever it went to.

    W. Scott Wilkinson:

    Sir?

    Hugo L. Black:

    Wherever it went to.

    W. Scott Wilkinson:

    Wherever it went to, yes.

    I — I must confess, Your Honor, that there was some lack of definiteness and certainty in the argument.

    I wish I could appear before the congressional committee now.

    I don’t mean to say that I — I mean I think there’s a lot of facts that have — we have ferreted out.

    In this case, it will not — have not been —

    William J. Brennan, Jr.:

    Well, Mr. —

    W. Scott Wilkinson:

    — obtained by research then.

    William J. Brennan, Jr.:

    Mr. Wilkinson, can you enlighten us at all why this language in Section 4 without — without prejudice to its claim that is beyond three miles, if any it has?

    W. Scott Wilkinson:

    Sir, that is not in Section 4.

    Just a minute, who got my Act here?

    That’s not in Section 4, sir.

    That’s in Section 3, and that does not relate to the state.

    That is — that, if any it has, relates to the title of the United States.

    Now, let’s read that.

    William J. Brennan, Jr.:

    They’re not in Section 4?

    W. Scott Wilkinson:

    No, sir.

    It’s in Section 3.

    Here is what it says, in Section 3 (b) of the Submerged Lands Act — what page is that on in our appendix.

    William J. Brennan, Jr.:

    You mean this is — this is an inaccurate statement at page 167 of the Government’s brief?

    W. Scott Wilkinson:

    I — I — I won’t —

    William J. Brennan, Jr.:

    It purports to give us the verbatim quotation or a part at least to Section 4.

    W. Scott Wilkinson:

    That’s not — that’s not in — wait a minute, now.

    Let me see.

    William J. Brennan, Jr.:

    Page 167 of the Government’s brief.

    W. Scott Wilkinson:

    Let me get the Government’s brief.

    Where is it?

    I want the Government’s brief.

    I — I didn’t catch that Your Honor.

    167?

    William J. Brennan, Jr.:

    Page 167.

    W. Scott Wilkinson:

    Yes, I see.

    Any claim — it is in both places Your Honor.

    I’m sorry.

    William J. Brennan, Jr.:

    In both Sections 3 and 4?

    W. Scott Wilkinson:

    Both Sections 3 and 4, I’m sorry.

    Now, let me — let me call the Court’s attention to what this thing means because I think some confusion here has been engendered by — by maybe our answers to questions.

    Section 2 is the Act — is the part of the Act that makes the definitions.

    I think those definitions as opposed to thereafter applied, or whatever, is stated.

    Section 3 of the Act is a confirmatory.

    Now, the Government calls it a grant.

    We say that that is a part of the Act that confirms the preexisting titles of the state that the legislative history of the Act admits has always been considered as the properties of the states.

    In that Section 3 and on Section 4 is the saving clause or the proviso with regard to nothing in the Act shall — nothing in this Act shall prejudice the right of any state to prove that its boundaries are more than three miles if, at the time or if prior from the time it was admitted to the Union, it was so provided by its laws.

    Now, let’s read Section 3.

    Section 3 (a) declares that “it is the public interest that the title to an ownership of lands beneath navigable waters within the boundaries of the states, and the right and power to manage the same, be and they are hereby subject to the provisions hereof recognized, confirmed, established, invested in, and assigned to the respective states.”

    Now, let’s go down to subparagraph (b) of this confirmatory clause which is Section 3.

    “The United States hereby releases and relinquishes,” I think those words “releases and relinquishes” are the kind that us lawyers down my way, anyhow, always use to write up a quick claim deal.

    Charles E. Whittaker:

    It is also —

    W. Scott Wilkinson:

    You —

    Charles E. Whittaker:

    — the language — the quick language here, down right, were just assigned?

    W. Scott Wilkinson:

    No, sir.

    They weren’t assigned.

    They — I’ll tell you what that applies to.

    They threw that in for good measure, Your Honor, and Section 2 (b) — Section 3 (b) will show you the reason why.

    “The United States hereby releases and relinquishes onto such states and persons aforesaid, except as otherwise reserved herein, all right, title, and interest of the United States, if any it has.”

    Congress questioned whether the United States had any right, title, or interest in these lands which it was relinquishing and releasing to the sates and whose title it was confirming and establishing and recognizing —

    Hugo L. Black:

    Is that true about Section 4?

    W. Scott Wilkinson:

    Sir?

    Hugo L. Black:

    Is that same thing true about Section 4?

    W. Scott Wilkinson:

    No, sir.

    There’s — what — what Section 4 —

    Hugo L. Black:

    That led them to say it didn’t have any.

    W. Scott Wilkinson:

    What Section 4 says is, now, that the states can prove their title beyond three miles, if any they have.

    Now, that brings us down to this thing here.

    William J. Brennan, Jr.:

    Well, now, the actual language is “without prejudice to its claim, —

    W. Scott Wilkinson:

    That’s right.

    William J. Brennan, Jr.:

    — if any it had.”

    W. Scott Wilkinson:

    That’s right.

    I — I was just stating it.

    William J. Brennan, Jr.:

    The boundaries extend beyond that line.

    What puzzles me is, why that form of words and whether there’s any enlightenment upon the use of them that would be found in the legislative history.

    W. Scott Wilkinson:

    Congress knew, Your Honor, when this law was passed — when these laws were passed.

    We must give Congress credit for knowing what had been done in the Gulf of Mexico in the years gone by.

    Congress must have known that the laws of Texas provided that its boundaries were three leagues in the Gulf of Mexico.

    It must have known that the boundaries of Florida were three leagues in the Gulf of Mexico.

    It must have known that the Enabling Act and the Act of Admission of Louisiana and its Constitution which was approved on its admission into the Union provided that the — that the State of Louisiana was contained within the following limits, including all islands within three leagues of its coast.

    It must have known of those things and this, of course, if Your Honors please, was a compromise measure.

    I believe I am correct in stating that, back in 1938 and probably again in 1939, there was an effort on the part of the administration to have Congress to declare that the submerged lands adjoining the coast of all the states belonged to the United States, and Congress refused to do that.

    In 1948, I believe it was, a resolution was enacted by the Congress and passed both Houses wherein it recognized the states owned the submerged lands offshore.

    And, I don’t believe there was any limitation in that resolution.

    W. Scott Wilkinson:

    It was vetoed by the President and it failed to pass over his veto.

    Then, came the passage of the Submerged Lands Act and the —

    Felix Frankfurter:

    Well, you leave out —

    W. Scott Wilkinson:

    — Congress —

    Felix Frankfurter:

    You leave out an important thing.

    W. Scott Wilkinson:

    I’d like to put it in.

    Felix Frankfurter:

    It’s not that you don’t know it.

    Of course, you do, but we’re not at large here.

    At least we’re not in the open sea.

    If, after the decisions in this Court in the Gulf State, Texas and Louisiana decisions, after those decisions, the claim that your state now makes no longer exists.

    It’s rejected.

    Is that right, in those decisions?

    W. Scott Wilkinson:

    In those decisions, yes, sir.

    Felix Frankfurter:

    The claim was rejected.

    W. Scott Wilkinson:

    Yes, sir.

    Felix Frankfurter:

    And, if Congress had never passed the statute, you wouldn’t be here.

    There wouldn’t be a case.

    W. Scott Wilkinson:

    You’re right, Your Honor.

    Felix Frankfurter:

    And, therefore, what I would like —

    W. Scott Wilkinson:

    Unless we try to get you to overturn your pre — prior decisions —

    Felix Frankfurter:

    Yes, but —

    W. Scott Wilkinson:

    — which you would, perhaps, refuse to do.

    Felix Frankfurter:

    You tried and — and that litigation was closed.

    W. Scott Wilkinson:

    Yes.

    Felix Frankfurter:

    Now, whatever rights you may have, if any, derived from the passage by Congress in May, it was in May, of 1953 of this Act.

    W. Scott Wilkinson:

    That’s right.

    Felix Frankfurter:

    And therefore, the closer we hug the shore of this Act, the clearer the issues will be and the less confused we’ll be, even the judicial minds.

    W. Scott Wilkinson:

    Yes, sir.

    Felix Frankfurter:

    The court is never confused.

    W. Scott Wilkinson:

    Yes, sir.

    W. Scott Wilkinson:

    Well, of course, we can come a whole lot closer to that by the — by the —

    Felix Frankfurter:

    You try to derived some right of the precise grants, whatever it may be, that Congress made in this Act and, therefore, it seems to me quite unhealthy to argue anew if though that were an original question, whether the Government of the United States had a title or whatever it did have, whether the state had a coterminous title, where they had less or more, all those issues were foreclosed not as a title, as I remember it.

    W. Scott Wilkinson:

    Yes, sir.

    Felix Frankfurter:

    I didn’t argue it, but as to dominion in those tideland cases.

    And therefore, you tried to persuade this Court that what Congress granted is what this Court said is a matter of so-called interstate common law the state didn’t have.

    W. Scott Wilkinson:

    Adhering to —

    Felix Frankfurter:

    Is that right?

    Is that correct?

    Is that the issue?

    W. Scott Wilkinson:

    That is not entirely correct Your Honor.

    I — I —

    Felix Frankfurter:

    Please be good enough to correct me.

    W. Scott Wilkinson:

    I’ll be good enough to correct you then.

    We — we make the argument here in our brief that the only theory, first, of course, Congress — Congress is a legislative body.

    Congress can declare whether or not the United States has extraterritorial rights or merely territorial rights.

    That’s correct, isn’t it?

    Now, Congress, in the passage of these Acts, reputed entirely any claim on the part of the United States to any extraterritorial rights in the submerged lands and waters adjoining the shores of the United States anywhere.

    Felix Frankfurter:

    Then Congress has no —

    W. Scott Wilkinson:

    So —

    Felix Frankfurter:

    — then the Government has no standing here at all if you are right about that.

    W. Scott Wilkinson:

    Yes, that’s right.

    Government had no standing here.

    That’s correct, sir.

    And we don’t think —

    Felix Frankfurter:

    In other words, the Government hasn’t any — anything to which — to make a claim.

    W. Scott Wilkinson:

    Oh, yes.

    Oh, yes we still have a dual system of sovereignty, Your Honor.

    Felix Frankfurter:

    Well, not that the United States Congress said “we want to exert no authority, whatever.”

    It wouldn’t be the first time.

    W. Scott Wilkinson:

    Oh, that’s right.

    Felix Frankfurter:

    Now, the United States has passed legislation saying, “An adjudication of the Supreme Court of the United States shall, in the matter of public policy, within our control, not be the assertion of a federal right,” because that’s in the favor of the famous Evie Rich case.

    You tell me that’s what the Congress did and I’ll listen to you with great interest.

    W. Scott Wilkinson:

    Yes, sir.

    Felix Frankfurter:

    Surprisingly.

    W. Scott Wilkinson:

    Alright.

    I’ll come to that.

    That’s what the —

    Felix Frankfurter:

    Now —

    W. Scott Wilkinson:

    That’s what the Fifth Circuit Court of Appeals said that Congress did, Your Honor, in the cases —

    Hugo L. Black:

    And, I say to you that I’d hope, before you finish, to save enough time to argue the case on the merits.

    Congress either gave you something in this Act or you don’t have anything.

    W. Scott Wilkinson:

    Yes, sir.

    Hugo L. Black:

    For me, that’s your issue.

    It may not be to the entire Court, but it doesn’t help to devote all your time in trying to put it on the — you’re trying to put it on the baby and, somehow, you left something at the Court’s decision.

    W. Scott Wilkinson:

    I — I know — I know that that is — that is covered thoroughly in our — in our briefs, Your Honor.

    And, I will try to pick it out for you in — in the Act of Congress and in the legislative history of the Act of Congress.

    It was contented I’ll — it — let me say this.

    The — the Department of Justice appeared before the Committees of Congress to urge that the three miles was the only limit.

    And they gave all the testimony that is now contained in Mr. Dulles’ letter as to why three miles was the extreme limit of the ownership of territorial waters and submerged lands.

    Congress didn’t agree to that.

    They rejected that theory by saying that, if we think it is possible and we think that the states should be entitled to prove that their boundaries extended more than three miles into the Gulf, and if they did extend more than three miles into the Gulf, either at the time they were admitted to the Union or prior thereto, then they are entitled to such boundaries.

    Hugo L. Black:

    Now, you joined issue with the Government’s statement which seems to disregard the words “or trial thereto.”

    W. Scott Wilkinson:

    Oh, yes.

    Yes, certainly, and we — we don’t — we joined issue with the Government, too, in its assertion that, well, they make the statement here that the limit was set, this three-league limit, in the Gulf of Mexico on page 21 of their brief.

    Not as an indication that Congress believed that such limits did or could exist, but as a concession to the demands of the coastal states.

    Well, that was certainly not only a futile proposition, but I think it would be a deceitful proposition if a provision were written into the law in this manner.

    To say to the state, “you may prove that you have a three-league boundary but we know you can’t do it because it isn’t so.”

    Hugo L. Black:

    Is that on page 21 of the Government’s brief?

    W. Scott Wilkinson:

    Yes, at the bottom of page 21 of the Government’s brief, it’s there.

    Hugo L. Black:

    Under argument?

    Hugo L. Black:

    That says argument?

    Well, that’s a different —

    W. Scott Wilkinson:

    Last paragraph.

    It’s this reply brief.

    I’m sorry sir.

    Hugo L. Black:

    (Inaudible)

    W. Scott Wilkinson:

    Brief of the United States in reply to Louisiana’s opposition to motion for judgment.

    In the passage, Your Honor, of the Submerged Lands Act, witnesses appeared before the committee to urge that what Congress was endeavoring to do was to give away property belonging to the United States to these coastal states.

    They said that this was a gift of bounty from the National Government to the state governments and that the nation should not do that to deprive all the people of the United States of this great wealth in order to benefit a few states.

    The congressional committee, in reporting — favorably reporting the Senate joint resolution which, in that respect, was no different from the House resolution and the legislative history on that is the same, specifically stated that this is not a gift.

    It is not a gift.

    Hugo L. Black:

    But if that —

    W. Scott Wilkinson:

    It merely reconfirms and reestablishes in the states what they have always believed that they have owned during the entire nation’s history.

    Hugo L. Black:

    And, is that crucial to your case, the truthfulness of the acquisition of that state?

    W. Scott Wilkinson:

    Well, I don’t think that’s crucial.

    No, sir, because I think it’s — I think it’s implicit in the Act itself, the wording of the Act of the recognition.

    Hugo L. Black:

    But, when the Act got through, you had something down there that you didn’t have under this Court’s opinion.

    W. Scott Wilkinson:

    Under Your Court’s opinion, that’s right, sir.

    Yes, sir.

    Hugo L. Black:

    And, unless you can prove that the Court’s opinion were otherwise, well, I suppose you have to say that you — they have here the subject you didn’t have before.

    W. Scott Wilkinson:

    No, sir.

    They recognized us as having something that we have always had and they confirmed and recognized and established our title thereto.

    And, the word “grant” was used because they released and relinquished onto the state any title that the United States might have, if any it has.

    It was the words they used there.

    And, thereby, in the Act itself, questioning as to whether the United States had any title.

    Hugo L. Black:

    Well, suppose that your question — your question here is whether the Congress, in this Act, permitted you to have some kind of a trial to see if you have three leagues instead of three miles.

    W. Scott Wilkinson:

    That’s correct, sir.

    And that’s what we’ve asked the Court to do when we asked to take the depositions in the case.

    And of course, that’s the reason we’re here, now, to this part of the hearing.

    Hugo L. Black:

    That’s on the language of the Act and not on rationalizations that may have been offered as why the Act was passed.

    W. Scott Wilkinson:

    Oh, I think it depends on that too Your Honor.

    Of course, we may not agree on that point, but our — our position is that there’s a great deal of rationalization here.

    Extraterritorial rights — the Government, here, says they claim extraterritorial rights.

    Such rights appear nowhere in the Constitution of the United States.

    They appear nowhere in any law except such extraterritorial rights as exists by virtue of treaties, and extraterritorial rights are mere personal rights such as a treaty with another country to permit the passage of truth through that treaty.

    A right such as we acquired after the Boxer Rebellion in China to have our nationals tried before our own courts for offenses committed in China.

    Those are extraterritorial rights.

    What they are claiming here is territorial rights because, by the very wording of the Outer Continental Shelf Lands Act, the territory of the United States, the jurisdiction in control of the United States, the power of disposition over the seabed and the subsoil have been extended to the edge of the Continental Shelf.

    It — on the — on that same subject, if Your Honors please, the Fifth Circuit Court of Appeals in the case of Quintana versus — Superior Oil Company versus Quintana, the case where the State of Louisiana sought to impose taxes on severance — severance taxes on resource that’s been severed from the soil, this was within the three — within three miles of the shores of the State of Louisiana.

    The Court sustained the right of the State of Louisiana to collect taxes on lands, on resources that have been severed from the soil within this area before the Submerged Lands Act ever became law.

    The Court said that, by virtue of the Act, Public Law Number 31, the Submerged Lands Act, which nullified the theory on which the opinion and the decree of the Supreme Court had been based, they must be held, notwithstanding the opinion of the Supreme Court, to have always and at all times had the title and right of possession of or, if the passage of Public Law Number 31 which brought the long struggle to an end is to be regarded as then confirmed title on them, this title by the very terms of the Act declaring it and establishing it related back so as to confirm and maintain the possession and title of the state and the lessee —

    Hugo L. Black:

    Where are you reading from?

    W. Scott Wilkinson:

    — as good from the beginning.

    Hugo L. Black:

    Where are you reading from?

    W. Scott Wilkinson:

    This is an opinion of the Fifth Circuit Court of Appeals.

    Now, I know I can’t assume that Your Honors approve that by refusing certiorari, but I would think that, perhaps, this Court didn’t violently disagree with that statement because it did refuse certiorari in that case.

    Hugo L. Black:

    Perhaps, I may repeat, and I won’t say it anymore, speaking as one member of the Court, I would prefer if you could argue your case on what the statute means.

    W. Scott Wilkinson:

    Yes, sir.

    Hugo L. Black:

    On the basis that you didn’t have anything, Congress gave us.

    W. Scott Wilkinson:

    Well, sir —

    Hugo L. Black:

    As I see it, it’s your issue.

    W. Scott Wilkinson:

    Well, sir, as I see it — as we see it and the position we take of course is directly contrary to that because we think that —

    Hugo L. Black:

    So, is that — is that the end of your position, then that’s alright.

    W. Scott Wilkinson:

    That’s —

    Hugo L. Black:

    That’s your only framework.

    W. Scott Wilkinson:

    That’s not — that’s not the end of our position, Your Honor.

    Of course —

    Felix Frankfurter:

    If you take that position then, in effect, you are asking this Court to reconsider its decision in Louisiana — in Louisiana and that’s your case.

    Is that right?

    Is that —

    W. Scott Wilkinson:

    I think —

    Felix Frankfurter:

    — the issue?

    W. Scott Wilkinson:

    I think — I think Your Honor, in view of the — I —

    Felix Frankfurter:

    Is that what’s going on?

    W. Scott Wilkinson:

    I think, in view of the Acts of Congress, that —

    Felix Frankfurter:

    That this is really what the statute means.

    W. Scott Wilkinson:

    — what was said in those cases (Voice Overlap) — should be reconsidered.

    Felix Frankfurter:

    In this statute, all is bounded to, in Section 4, was an invitation of the Supreme Court to grant a rehearing or initiate a rehearing to reconsider its decision in U.S. against Louisiana, is that it?

    W. Scott Wilkinson:

    No, not in Section 4 of the Submerged Lands Act.

    We got two Acts here, the Outer Continental Shelf Lands Act is the other.

    And the legislative history behind both of these Acts are what indicate that it was a confirmation of title and a recognition of title rather than a grant of title and rather than a gift of title because —

    Felix Frankfurter:

    What was the — this Court, in an opinion with which I happen not to agree —

    W. Scott Wilkinson:

    Yes, sir.

    Felix Frankfurter:

    — in which I happen not to agree, decided, as clearly as anything was ever decided, that that position is wrong in laws.

    And while I have to follow the record, you say you want to argue it today, is that right?

    W. Scott Wilkinson:

    I say that it should be reconsidered, Your Honor.

    Now, I would like to go on with the argument here as to the three leagues, whether or not Louisiana is entitled to three leagues or merely three miles from its coast.

    In the case of Louisiana versus Mississippi, the boundary line between Louisiana and Mississippi was in issue before this Court.

    And, in that case, while this Court did not decide the limit of territorial waters, it did say that Louisiana’s southern boundary was a water boundary.

    Now, the Act of Admission of Louisiana described it as a water boundary and when it says that it was contained within the following limits, that is, including all islands within three leagues of its coast.

    This Court, in this — in this case, said that that was a water boundary.

    If it were not a water boundary then, by implication, the Act of Admission would have included the submerged lands and territorial waters adjoining the coast of Louisiana by implication.

    That has been stated in numerous decisions of this Court.

    The United States has consistently approved the three-league boundary in the Gulf of Mexico.

    In a treaty with Spain — now, the Treaties that we enter into, Your Honors, I think are — we refer to treaties as matter of common usage between nations as a basis for international law.

    We entered into a treaty with Spain on February 22nd, 1819 defining the boundaries, beginning in the Gulf of Mexico at the mouth of the Sabine River.

    A similar treaty was made with Mexico in 1828.

    In 1838, the United State entered into a convention with the State of Texas for the marking of the boundary between the United States and Texas.

    And, notes to that treaty by the Department of State show that, in the — in the agreement for the marking of that boundary, both the Department of State of the United States and the foreign office of — or, rather, the representatives of the Republic of Texas agreed that they were bound by the prior treaties that had been made with Spain and Mexico, and that the boundary of Texas was three leagues in the Gulf of Mexico.

    Subsequently, in the Treaty of Guadalupe Hidalgo, in 1840 — in 1848, the United States and Mexico agreed upon an international boundary in the Gulf of Mexico, beginning three leagues in the Gulf of Mexico opposite the mouth of the Rio Grande and, thence, on over to the Pacific Ocean some-2000 miles.

    W. Scott Wilkinson:

    In the Gadsden Treaty, in 1853, the same boundary was reconfirmed as being three leagues in the Gulf of Mexico.

    Subsequent treaties were entered into in 1882 with Texas, in 18 — I mean, with Mexico 1882, 1884, and 1905 wherein this boundary was reaffirmed.

    The Congress of the United States has recognized that territorial limits of the states in the Gulf of Mexico extend three leagues.

    In the case of Florida, of course, Florida’s Constitution was approved as being three leagues in the Gulf of Mexico.

    In 1906, Congress passed an Act prohibiting the taking of sponges in the Gulf of Mexico.

    That was the case of the Abby Dodge versus the United States where the crew of — the Captain of Abby Dodge or the owner of the Abbey Dodge was indicted.

    And the courts specifically held in that case that the indictment did not negative the fact that the taking of these sponges was within the territorial waters of the State of Florida.

    Subsequent to that decision, in 1914, Congress passed another law regulating the taking of sponges in the Gulf of Mexico beyond the territorial limits of the states.

    Now, I think all those — all those treaties and all those Acts of Congress, if Your Honors please, recognizing the three-league boundaries in the Gulf of Mexico are to be considered in interpreting the boundaries of the State of Louisiana and in accordance with the Submerged Lands Act as a part of our proof that we are entitled to that boundary.

    Hugo L. Black:

    If —

    W. Scott Wilkinson:

    I won’t —

    Hugo L. Black:

    — if they are, they would — would all of them be admissible?

    Now, could we take judicial notice of all that —

    W. Scott Wilkinson:

    You can take —

    Hugo L. Black:

    — or some of them we could not take?

    W. Scott Wilkinson:

    You can take judicial notice of these boundaries of course because they are in treaties executed by the United States, and these recognitions are in Acts of Congress.

    Now, briefly, in closing this part of the case in order that I may reserve a little time for reply, I want to remark with regard to the Equal Footing Clause and the admission of the State of Louisiana.

    In the case of United States versus Texas, Your Honors will recall, it was assumed that if Texas’ boundaries were three leagues in the Gulf of Mexico, the Court could not recognize that because that would admit Texas on a footing that was equal with the other states.

    Now, by that same token — by that same token, to provide here or to permit here the other states in the Gulf of Mexico to have boundaries three leagues offshore is to deny to Louisiana the equal dignity and equal standing and the equal sovereignty with the other states in the Gulf of Mexico.

    It is perfectly proper for the Congress to say that the boundaries may extend three leagues in the Gulf of Mexico.

    But, by the equal footing provision, we are entitled to the same and, certainly, in consideration of that equal footing provision, this Court should construe the Act admitting Louisiana into the Union in 1812 in the same like that the other states’ boundaries in the Gulf of Mexico are considered.

    Hugo L. Black:

    Is there any challenge to that?

    Is that what it’s supposed to suggest?

    W. Scott Wilkinson:

    We would like to — sir?

    Hugo L. Black:

    Is there any challenge here?

    It’s just that I didn’t — I didn’t understand that issue.

    W. Scott Wilkinson:

    The Government challenges that statement on the grounds that we — that Texas and Florida came into the Union after Louisiana was admitted.

    Hugo L. Black:

    Is the Government impinging that Florida can get this tidelands at nine miles and you can’t?

    W. Scott Wilkinson:

    No, sir.

    They are not insisting that.

    W. Scott Wilkinson:

    That is implicit in the Act.

    Now, we’re discussing the Act, Your Honor.

    You desire that I adhere to that Act, and I’m discussing that Act now and that Act unmistakably — that Act, although mistakably, recognizes Texas and Florida and any other states in the Gulf of Mexico.

    I say, explicitly does, I mean you can’t read the Act and you can’t read the laws of these states without coming to the conclusion that it does recognize three-league boundaries in the Gulf —

    Hugo L. Black:

    You’re saying that —

    W. Scott Wilkinson:

    — for those states.

    Hugo L. Black:

    — you’re saying that if we had the case of Texas and Florida in Court, that we’d be compelled to hold that they have —

    W. Scott Wilkinson:

    Three leagues in the Gulf of Mexico.

    Hugo L. Black:

    Three leagues.

    What —

    W. Scott Wilkinson:

    Yes.

    Hugo L. Black:

    — language of the Act does say?

    W. Scott Wilkinson:

    It gives them the right —

    Hugo L. Black:

    So, that, I think is the very language of the Act —

    W. Scott Wilkinson:

    That is the language of the Act that says “if it was so provided by its laws at the time of or prior to the admission to the Union,” and in the definition of boundaries.

    Hugo L. Black:

    Even though it happened, the State found, not by law, would be found a national boundary, is that true?

    W. Scott Wilkinson:

    No, the national boundary goes to the edge of the continental shelf, Your Honor.

    And, our argument is that the national boundary has always been declared to be three leagues in the Gulf of Mexico.

    There is not a single Act of Congress or a single treaty that’s ever said it was three miles, never.

    And this Act recognizes the fact — this Act recognizes the fact that there are laws which may provide that the boundaries of states in the Gulf of Mexico go to three leagues and it sends us to this Court, in effect, to have this Court to determine that factor, as to whether not that is a fact.

    And Louisiana’s boundaries read “within the limit of three leagues,” but they do not read the same as the Texas and the Florida Act.

    I think the Texas and the Florida Acts clearly read three-leagues boundaries in the Gulf of Mexico.

    And when you read the Submerged Lands Act and when you read the laws of these states, I think the — the conclusion is inescapable, but their boundaries are three leagues in the Gulf of Mexico.

    And the right to be maintained on an equal sovereignty over these states is not limited to the date of admission of the state into the Union.

    This Court had so — said so.

    If that were so, you could produce an inequality, indignity, in sovereignty between the States instead in maintaining the equality of sovereignty that they are entitled to.

    I’d like to reserve the rest of our time.

    Hugo L. Black:

    Do you mean that one state should be given nine leagues though the other isn’t given?

    W. Scott Wilkinson:

    In the Gulf of Mexico, yes, sir, and I — I began my argument with the statement that the Gulf of Mexico is different from the Atlantic and Pacific Oceans and, of course, the Act makes the difference.

    It’s a reasonable classification.

    W. Scott Wilkinson:

    In the Great Lakes, the international boundary goes to the middle of the Great Lakes, 50.

    Well, Lake Curran has an average width of 177 miles.

    So the boundaries of the states on — the international boundary of the states on Lake Curran go out 77 miles.

    And the Court has always said what is true, that these are great inland seas.

    Because they are inland seas, it is reasonable to classify them differently from the Atlantic.

    Because the Gulf of Mexico is also more or less of an enclosed sea, it may be classified differently and it may be provided there, reasonably, that the limit may be three leagues if the state can so prove it.

    Hugo L. Black:

    And may I ask if you’ve given us all the answers that you can think that the basic issue before us here, for us to decide at this case now.

    Shall there be a hearing that is right to introduce evidence —

    W. Scott Wilkinson:

    Yes, sir.

    Hugo L. Black:

    — to determine some issues?

    W. Scott Wilkinson:

    Yes, sir.

    Hugo L. Black:

    And the statute says that — it provides that where in any case such boundaries had existed at a time such a state became a member of the Union, and so forth?

    W. Scott Wilkinson:

    Yes.

    Hugo L. Black:

    Had you given us all the illustration, all the possibilities you think you can offer of which we can’t take judicial notice to establish the occasion, in other words, that you need a hearing for?

    W. Scott Wilkinson:

    Only in a general way, Your Honor.

    Of course, I couldn’t — I would have to give the testimony.

    Hugo L. Black:

    Well, in a general way, that’s the issue we have.

    What — what is it that you can offer here in evidence that would establish your right to have three leagues out in the Gulf.

    W. Scott Wilkinson:

    The manner in which the Act of Admission of Louisiana, the — the wording of the Act admitting Louisiana into the Union —

    Hugo L. Black:

    — the wording, that’s — that’s — you don’t have to have evidence on that.

    W. Scott Wilkinson:

    We don’t have to have evidence on that, unless the Court should say that that wording is ambiguous and, in order to show what the wording means, we are entitled to show the contemporary and long continued construction given to this boundary of Louisiana.

    Hugo L. Black:

    You mean, before and afterwards?

    Before and after you were admitted?

    W. Scott Wilkinson:

    Yes, sir.

    Yes, sir, the testimony — some of that testimony of witnesses, of course, the testimony of living witnesses can only go back for the past 50, maybe, or 60 years at the most.

    Documents in the State Land Office and the Mineral Board and documentary evidence and records in the state capital at Baton Rouge, Your Honors don’t take judicial notice of those things.

    Hugo L. Black:

    What else?

    What else, in order to —

    W. Scott Wilkinson:

    Other than the testimony of witnesses, the records of the State Department —

    Hugo L. Black:

    Testimony of witnesses on those points.

    W. Scott Wilkinson:

    That’s right, on those points.

    Hugo L. Black:

    But other than that, what?

    W. Scott Wilkinson:

    Other than documentary evidence and records of the state offices, I — I know of nothing else.

    Do you?

    Felix Frankfurter:

    You said there are four by category in your motion paper, didn’t you?

    W. Scott Wilkinson:

    Sir?

    Felix Frankfurter:

    You said four?

    You said four —

    W. Scott Wilkinson:

    Yes.

    Felix Frankfurter:

    — category of things —

    W. Scott Wilkinson:

    Yes.

    Felix Frankfurter:

    — which you would like to have put at issue at a hearing in your motion —

    W. Scott Wilkinson:

    Yes, sir.

    Felix Frankfurter:

    Is that right?

    W. Scott Wilkinson:

    Yes, sir.

    Felix Frankfurter:

    And those are the categories —

    W. Scott Wilkinson:

    Yes sir.

    Felix Frankfurter:

    — we have before us now.

    W. Scott Wilkinson:

    Yes, sir.

    Felix Frankfurter:

    Is there anything to add to that or, now, can we stand on that?

    W. Scott Wilkinson:

    Of course testimony of this — I mean, the — this evidence to show that United States has recognized, and the United States has to prove our Act of Admission as meaning three leagues, just as the State of Louisiana has construed it over these 145 years.

    Felix Frankfurter:

    Well, something may appear to be absolutely clear.

    It could just be any English words and the testimony he’d make sure that it’s clear the other way.

    These words are to be embedded in the context of their time.

    W. Scott Wilkinson:

    Yes, sir.

    Felix Frankfurter:

    Therefore, you can’t just read it and say, “I know what this means.”

    If you have relevant evidence, then it really means something very different.

    W. Scott Wilkinson:

    My relevant evidence means that we are entitled to three leagues from coast in the Gulf of Mexico.

    That’s what the evidence will show.

    J. Lee Rankin:

    May it please the Court.

    Mr. Rankin, we coordinated your space.

    J. Lee Rankin:

    Sorry, I —

    Judge Perez:

    If Your Honor please, I’m Judge Perez, representing the interveners.

    At this time, I don’t know just what our status is.

    Felix Frankfurter:

    You —

    Just a minute —

    Judge Perez:

    The —

    This gentleman forms a new part of the —

    Felix Frankfurter:

    You have indicated —

    — statements that was arbitrated.

    Felix Frankfurter:

    We declined to.

    Judge Perez:

    Oh, I didn’t know just what our position was.

    Felix Frankfurter:

    You have no position.

    Judge Perez:

    I thought the matter was still under advisement.

    Earl Warren:

    You have no position.

    Judge Perez:

    I see.

    Earl Warren:

    Have a sit.

    Judge Perez:

    Then, would Your Honors please consider our brief amicus curiae?

    Earl Warren:

    That’s already been presented.

    Judge Perez:

    Thank you.

    J. Lee Rankin:

    May it please the Court.

    If you will bear with me just a moment, I’d like to go back to the Act and clarify what appears to me to be a slight misunderstanding as to its terms.

    On page 165 of the Government’s brief, Section 2 subparagraph (b) of 2, the definition of the term “boundaries” and, there, you will see the language used as they existed with regard to the Gulf of Mexico at the time such state became a member of the Union, or as heretofore approved by the Congress, or as extended or confirmed pursuant to Section 4 hereof but, in no event, shall the term “boundaries,” and so forth.

    So that, the extended or confirmed is the part that refers to Section 4.

    Then, if you refer to Section 3 subparagraph (a), you will see there is a reference to the fact that the lands, where it’s to be in the public interest to make the declaration, is within the boundaries of the respective states.

    And then, in subparagraph (b)(1), the United States hereby releases, relinquishes, and so forth.

    And then, reading down to the fourth line, all said lands, improvements, and natural resources taking the train back through those sections.

    It’s the lands, as I’ve referred to, within the boundaries of the respective states in Section 3 that are relinquished in (b)(1) where the grant is.

    And, the boundary definition is back in (b) of (2).

    Now, if you turnover to Section 4, you will see that the language “any state admitted subsequent to the formation of the Union, which has not already done so, may extend its seaward boundaries,” to what?

    J. Lee Rankin:

    “To a line three geographical miles distance from its coastline.

    Any claim heretofore or hereafter asserted, either by constitutional provision, statute, or otherwise, indicating the intent of a state so to extend its boundaries is hereby approved and confirmed as to three miles,” not three leagues, “without prejudice to its claim, if any it has, that its boundaries extend beyond that line.”

    It isn’t empowered by those means to get out to three leagues.

    It’s empowered to get to three miles but, without prejudice, to whatever rights it has, in any other way to beyond that point.

    And then, nothing in this is — this Section is to be construed as affecting those rights to three leagues, and so forth.

    So, what the Congress was trying to do was say, “this situation, as far as there are legal rights to a three-league boundary, is the same as though this Act had never been passed, insofar as to whether they had such a boundary or didn’t have such a boundary.”

    Now, the grant is something different.

    Hugo L. Black:

    May I ask you this is, sir?

    J. Lee Rankin:

    Yes, Mr. Justice Black.

    Hugo L. Black:

    Your argument of today, seemed to me, require we accept it.

    If we hold that these several references to these three leagues will just fully use the severance.

    J. Lee Rankin:

    Well, they —

    Hugo L. Black:

    Now, if you —

    J. Lee Rankin:

    Excuse me.

    Hugo L. Black:

    I can understand that argument that you may.

    J. Lee Rankin:

    Yes, sir.

    Hugo L. Black:

    But, if — if that — suppose that’s not correct.

    Do you claim that Congress went beyond its constitutional power in providing that those states would be clearly different than to the others?

    J. Lee Rankin:

    No, I do not.

    Hugo L. Black:

    Then, it’s wholly a question of construction of the statue.

    J. Lee Rankin:

    That’s right.

    Hugo L. Black:

    And what — what it means?

    J. Lee Rankin:

    Yes.

    Hugo L. Black:

    And up to date, I haven’t — where — your interpretation should give it anything or no?

    J. Lee Rankin:

    Well, it gives it this meaning, that there were powerful forces contending in the Congress for different view points.

    And, one of the contentions was that Congress should not foreclose the claim to three leagues.

    Another was that they should put a blessing on it and approve it.

    And another was that they shouldn’t get it in any event, that all states should be limited to three miles.

    Now, Congress selected the one where they said, “We won’t put any blessing on it.

    If you can prove it, in spite of the fact of the position of the United States and all, that’s up to you to go to Court and do it.”

    J. Lee Rankin:

    That’s — that’s what we feel —

    Felix Frankfurter:

    That of an empty promise?

    J. Lee Rankin:

    There wasn’t any promise in it.

    They only gave —

    Felix Frankfurter:

    What could they do?

    Would you mind being very particular, what is it in rejecting the people who didn’t want to — who wanted to foreclose the issue by not recognizing it, those who wanted a blessing, as you — they took neither of these two and said “if you can prove your claim, go ahead and prove.”

    Now, what is it they were allowed to prove?

    J. Lee Rankin:

    Well, they were allowed to prove that, at the time they entered their Union, they — the state boundary extended to three leagues, if they could prove it.

    Felix Frankfurter:

    Is that an issue that’s tried and simple, doable, determinable, or is it foreclosed that, even — that though they have proved it or they may prove it up to their year, since the international policy of the Government of the United States was to limit its claim of right to extend not beyond the three-mile limit, no state could go beyond it.

    J. Lee Rankin:

    I think what you’ve just said is correct, but everybody didn’t agree to that.

    Felix Frankfurter:

    Well, then, why should we —

    J. Lee Rankin:

    If —

    Felix Frankfurter:

    Why doesn’t everybody include us?

    J. Lee Rankin:

    Only if this Court is not going to be bound by its decisions recognizing the decision as to the boundary of the United States by the political branch of the Government.

    Felix Frankfurter:

    But, whether you can’t with the candor, you agree that Congress need not to be bound by it because res judicata didn’t apply to a different conception of policy by Congress.

    J. Lee Rankin:

    I agree to that because it is also a political branch of the Government that has the power to say that, despite everything that’s done in the Executive Branch, and there is a refinement of limitations there as to whether they’re acting within their area as distinguished with the Executive’s Area, but assuming that we don’t have that problem, that they’ve also have the power to declare the boundary of the United States, and can do it.

    Now, I say, with due respect to this Court, that those two branches have the power to say that in regard to the boundary of the United States in their proper areas of action, and this Court will take that action to say no state in the Union can extend beyond that.

    Felix Frankfurter:

    Now, suppose I accept that.

    I would like you to be good enough to illustrate this.

    In the Secretary’s letter, setting forth the political policy of the, certainly, foreign affairs directing branch of our Government, Secretary of State says the position of the United States — their position on the three-mile limit, page 159 of his letter to you, the position of the United States on the three-mile limit has been made unchanged to this day, and at no time has this Government found a different policy regarding the extent of its territorial waters in the Gulf of Mexico.

    That his statement to you as to the policy of the Executive Branch of the Government.

    But, the Congress of the United States, in the Act, we have to construe, does makes a difference.

    In section (b), to which you referred, they gave it additional power which shall not be interpreted as extending it from the coastline more than three geographical miles in the Atlantic Ocean or the Pacific Ocean or more than three marine leagues into the Gulf of Mexico.

    And, how can I have reached that, except to this extent that the finding that the Congress adopted a different policy and allowed rights in the Gulf of Mexico different from that Secretary Dulles telling the United States in all the waters.

    J. Lee Rankin:

    Well, I don’t think that interpretation is proper and I think, upon studying the brief, you will find that it’s not.

    But, I think if the Congress had said that the — the boundary of the United States in the Gulf of Mexico is hereby extended three leagues, instead of three miles, then you would have the problem that you are describing.

    Felix Frankfurter:

    I’m not saying it says that, but it shouldn’t be differentiated interest in the Gulf of Mexico, different from the Atlantic and the Pacific Ocean.

    J. Lee Rankin:

    I agree with that and the reason for it was —

    Felix Frankfurter:

    What if you found out if some — I was trying to find some significance not to forget it.

    J. Lee Rankin:

    Yes, you should find why they did it.

    J. Lee Rankin:

    And, the reason they did it was not to, at that point, chop them off by the congressional action and decide right then, as they apparently did with all the rest of the country that three miles is the limit.

    And —

    Felix Frankfurter:

    And you say — but you say it is an inadmissible interest that they come to Court and establish that claim not foreclosed by what we decide in the California, Louisiana, and Texas cases.

    J. Lee Rankin:

    Because of the other language they used about what was the measure of how the — the rights they would get, which was their state boundary at the time they entered the Union.

    Now, here, we have, in addition to all of that, we have a territory of Louisiana.

    We don’t have, like with Texas, an independent nation or republic.

    So that, whatever property they had prior to that time was the property of the United States.

    Felix Frankfurter:

    Well, not when the original requirement has been originally got Louisiana from the poll.

    J. Lee Rankin:

    When we got the purchase, then it was described by running along the Gulf, together with the islands within three leagues.

    Now, we have — in several cases, the United States has — States has a treaty with Britain about the eastern coast running from the Bay of Fundy down to the river between Georgia and Florida, giving the United States all of the islands within 20 leagues.

    And, it’s always been our policy that we only claim three miles plus the islands.

    The same is true over in the Bering Sea with the Treaty with Russia.

    We’ve taken that position for — since 1860 or 1870.

    I guess it was 1870-something in regard to Russia.

    So that, the position of the United States is that such language gives you the islands and what — the coast, but not the intervening land.

    And then, you look to see whether, under proper laws, the inland waters are defined to be according to bays and other things that we think should be a subsequent part of this case.

    William J. Brennan, Jr.:

    Mr. Rankin, before you sit down, just one last question.

    As I get it now, what you’re, in effect, telling us is that the granting clause is using boundaries, notwithstanding this reference to something beyond three miles and four in Section 4, in fact, limits boundaries to the three-mile — to the three-mile band.

    J. Lee Rankin:

    That’s right.

    William J. Brennan, Jr.:

    Now, what do you do then with the granting clause also contains language of ownership of the lands beneath navigable waters within the boundaries, and you get back now to 2 (a) or A (2), rather.

    And, lands within the United States are defined as seaward to a line, three miles distance, from the coastline and to the boundary line of such state where, in any case, such boundary, as it existed at the time the state became a member of the Union, extends seaward beyond three geographical miles.

    Don’t you have to read both definitions into the granting clause?

    J. Lee Rankin:

    Well, you always have to read where you’re going to draw the line, which is from the coastline or the high water mark, in order to get the measurement of the two sides.

    William J. Brennan, Jr.:

    Yes, but this says that lands means everything seaward to three miles distance or where it was so at the time the state came into the Union to that point beyond three geographical miles, wherever it may be.

    That’s what A (2), at least the excerpt, I find at 164 of your brief, at the bottom.

    J. Lee Rankin:

    The way I —

    William J. Brennan, Jr.:

    And —

    J. Lee Rankin:

    — I read that —

    William J. Brennan, Jr.:

    Yes.

    J. Lee Rankin:

    — Mr. Justice, is that all lands permanently or periodically covered by tidal waters up to, but not above, the line of mean high tide, and I interpolated, then seaward —

    William J. Brennan, Jr.:

    Yes.

    J. Lee Rankin:

    — to a line three geographical miles distance —

    William J. Brennan, Jr.:

    Or —

    J. Lee Rankin:

    — in the coast.

    William J. Brennan, Jr.:

    — then, go on.

    And, to the boundary line of each state where, in any case, such boundary as existed when the state became a member of the Union extended seaward beyond three geographical miles.

    J. Lee Rankin:

    Yes.

    William J. Brennan, Jr.:

    Extended seaward or into the Gulf of Mexico, is that it?

    J. Lee Rankin:

    That’s true.

    William J. Brennan, Jr.:

    Well, now, don’t you have to take that definition and read it into the use of the words “lands beneath navigable waters” in the granting clause?

    J. Lee Rankin:

    Yes, but you have to take the term “boundaries” when you — when it’s used here to find out how it’s defined and in this same, too, it says “when it became a member of the Union.”

    William J. Brennan, Jr.:

    In other words, then — then this broader definition is limited by the word “boundaries” which is defined to be within three miles.

    J. Lee Rankin:

    Yes.

    William J. Brennan, Jr.:

    They certainly did a fine job of confusing it, didn’t they?

    J. Lee Rankin:

    The only — I would like to just say one thing about the depositions, if I may, Mr. Justice.

    We suggest that if the Court feels that the United States’ position is justified and that if you can, at this time, determine the question between three miles and three leagues, that the question of depositions should at least be reserved until we know the extent of the line, whether it’s three miles or three leagues.

    The motion, as you recall, is to take depositions, and that is all that the motion involves as far as Louisiana’s concerned at this point, as we understand it.

    And, we think that it would be much more serviceable to all of the parties if that question is reserved until we know whether it’s three leagues or three miles that’s involved.

    Felix Frankfurter:

    And I — may I asked a question, Mr. Solicitor.

    As I understand it, the motion of leagues makes the question the — those are the questions — that assumption goes to the question that you think will be determined apart from it, what it sought to find out that, namely, whether the meaning of the statute, including the one whether — the one the statute is about, whether it is three leagues or three miles.

    And, isn’t that included in the subject matter regarding the way the State of Louisiana certainly can’t start it unless you take your position?

    J. Lee Rankin:

    We think that’s involved in their defense to our motion, in that, the issue is whether or not there are any issues of fact, at this point, that the Court does not take judicial notice of.

    If the Court would conclude that there are none, then their question of deposition would bear on this baseline and the problem before you do the measuring.

    If the Court would conclude, from the briefs and material that’s presented to the Court, that there are questions that would bear upon the facts that would have any materiality, then the depositions, I assume, would — would bear on that, too.

    But, if you conclude that the facts are such, that there is no issue that’s material in regard to all of these other things that would attack the old decisions and so forth, then, it seems to me, you get down to the question of baseline and the deposition for that purpose.

    Felix Frankfurter:

    I’d like to ask you one more question regarding that view.

    Assume we reach the question where the Court thinks that the deposition would be just one required.

    We would now, or perhaps in the memorandum, to indicate the view of the Department of whether the Court should allow to extend while you take — to a maximum of 20 miles, according to these records, as you wish or whether it should take appropriate steps and try to —

    J. Lee Rankin:

    I can express myself now in behalf of the Government that the United States would much prefer doing it to a special master.

    We would prefer not to have the duplication that’s involved in taking the depositions and then appearing before a master, too.

    J. Lee Rankin:

    And, we do not think that the cases preclude the Court, assuming that you follow the civil rules, from doing it otherwise.

    We think it would save everybody’s time.

    Felix Frankfurter:

    Your preference is the master.

    J. Lee Rankin:

    Yes.

    Jack P. F. Gremillion:

    Mr. Justice Black and Your Honors, I should like to start very briefly with the Submerged Lands Act.

    But, I should like to point out that the same session of Congress also passed the Outer Continental Shelf Lands Act.

    I should like to point out that, in the Submerged Lands Act, the Congress gave definitions, the Congress gave a relinquishment or a quick claim or a conveyance of lands within — submerged lands within three miles to all of the states, and the Congress gave to each of the states in the — their border on the Gulf of Mexico the right to prove that their boundaries went further, if they could do so.

    And, that would be a very poor concession to have made to the states who were arguing for that right if the Congress had meant “but when you get to Court, you will find that the right is empty because you, if you prove it, can get nothing from it.”

    Now, the same Congress passed the Outer Continental Shelf Lands Act and, when it did so, it did not say that our Outer Continental Shelf begins three miles from the coast or even three miles from the shore.

    It said it begins from where the submerged lands, the boundaries established under the Submerged Lands Act, leave off.

    To turn to the Act — the language of Congress, the term “Outer Continental Shelf,” and that’s on page 6 of our brief, means all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in Section 1301 of this Title and, of which, the subsoil and seabed appertain to the United States and are subject to jurisdiction and control.

    And so, the same Congress made a distinction between the lands it was dealing with for the states and the lands it was dealing with in connection with the Outer Continental Shelf.

    And may I say here that it was not only the Congress, but the President also, for the President signed these Acts and both political branches of the Government, the Executive as well as the Legislative, said that the Gulf states would be permitted to prove that they had three leagues when they came into the Union or that three leagues had been approved thereafter if they could, and it is — it is unthinkable to me that the President and the Congress would say that we would have the right to do it, but that a Cabinet officer of the same President would say “but we can’t have the right to do it because the national boundaries never went so far.”

    As a matter of fact, Mr. Dulles does not say that.

    And, if you will refer to his letter, which appears in the Government’s brief, he took care really not to say that.

    On page 178 of the brief, after talking about Mr. Jefferson’s care in this matter, and you will remember that Mr. Jefferson said the least we have is three-miles but he didn’t say we don’t have more, and Mr. Dulles in his letter to Mr. Brownell says that the caution which led Jefferson to reserve for further consideration the claims of the United States in this matter continued to mark the position of this Government for a few years after the turn of the century.

    That’s in the middle of page 178.

    Now, how many years after the turn of the century?

    Louisiana came into the Union in 1812.

    Louisiana had its Enabling Act in 1811.

    The Louisiana purchase or session was in 1803.

    All of these were a few years after the turn of the century.

    In 1811, we were to have, and in 1812, all islands within three leagues of the coast.

    In 1817, Mississippi was to have all islands within six leagues of the shore.

    In 1819, Alabama was to have all islands within six leagues of the shore.

    In 1819, we make a Treaty with Mexico discussing three leagues, and so on and on and on, and no date does Mr. Dulles suggest prior to 1862 when he says “the policy of the United States as to three miles became firm and it was not applied to the Gulf of Mexico.”

    And, there is nothing whatever to limit the territory of the United States two-three miles in the Gulf of Mexico.

    And, the President of the United States and the Congress of the United States, by the Submerged Lands Acts and by the Outer Continental Shelf Lands Act, show as positively as people can that they think the boundary of the United States extends at least three leagues.

    Now, there is a difference on the Atlantic Coast, on the Pacific Coast where the Continental Shelf dropped sharply, and from our coast where it tapers off gradually.

    And, I think that Congress meant — I think that the Congress, in 1811 and in those days when the only mode of transportation in our area of the country that meant anything was by water, I think that they didn’t use words carelessly with respect to the three great States of Louisiana, Mississippi, and Alabama.

    Jack P. F. Gremillion:

    I think they knew what they were talking about.

    And, I think that when they talk about our coast and the — talk about the shores of Mississippi and the shores of Alabama, they understood that there was a difference and they didn’t use the words meaninglessly but meaningfully.

    And, I think we ought to be permitted to show that and to show that, through out in dealing with Louisiana and from the very beginning, that the Congress has always talked about our coast as distinguished from our shore.

    Now, I would like to go a little bit further back.

    I’d like to go to what I grew up calling the Louisiana purchase but what we now call the Louisiana session.

    And, when that wonderful Act was written in 1803, France ceded to us not only the mainland, but they said in the session made by the preceding article are included the adjacent islands.

    Now, I — I emphasize the word “adjacent” because, to me as a lawyer and to Your Honors as Justices, I am sure it has a significant meaning.

    Adjacent, to me, means in join — adjoining, that there is not something separating one from the other.

    And France ceded to us this mainland and the adjacent islands.

    It didn’t say within three leagues.

    It didn’t say within 10 leagues.

    It didn’t say within 20 leagues.

    But, it said the adjacent islands as a part and parcel of the same thing, that the hare was going with the hide, and the United States got all of it — all of these islands.Well, where were they?

    When the United States undertook to form Louisiana within certain limits under the Enabling Act of February 1911, the United States drew a line not just the Congress, but the President, the entire political branches of the Government drew a line in the Gulf of Mexico and they said three leagues from coast.

    And, they did the same thing when they got to Mississippi and when they got to Alabama, expect that they said six leagues from shore.

    But, they were drawing a line because everyone must have believed then that in order for the United States to own these islands in the Gulf of Mexico, at least those acquired by purchase from France under the language I have just read, that for us to own them, we own them as a part of that purchase.

    And, when they established the State of Louisiana, these islands adjacent — adjacent to the mainland, those surrounded by water at the surface of the water, were given to us and that carried the submerged land with it as clearly as could be.

    Felix Frankfurter:

    May I ask you a question?

    Jack P. F. Gremillion:

    Yes, sir.

    Felix Frankfurter:

    Does it follow that, because the state may own what are called adjacent islands or an adjacent island, do I, at that time, so that I would may be out 3-12 miles, I believe the Catalina Island is, off the shore of California, could that carry with it that’s kind of mean what the right of the water intervening are?

    Jack P. F. Gremillion:

    I’d like to draw a distinction between the language, if I may.

    In our treaty with England, the people who drew that Act said North America and all islands within 20 leagues of the — of the shore or maybe all islands within 20 leagues of the coast, and there could have been an international belt in between because that didn’t say adjacent islands.

    But, in our case — in our case, the descriptive words, and this was a big land deal and then people were trying to be careful and talk about what they meant, and it was an important land deal to the United States because, from the very beginning of our independence, our people started talking about an outlet to the Gulf of Mexico through the Mississippi.

    And, I remember that, in the very year of our independence, Mr. Morrison wrote to Mr. Jefferson and said, “we’d have to have it, and if you can’t get it at New Orleans, get it at Baton Rouge,” which is my home town.

    And, from — from the beginning, they knew that they had to get to the open sea that there were not to be left any belt between them and the open sea.

    The open sea was the — was the travel lane by which people leave, and we were going there by one means or another.

    In my part of the state, the Florida parishes, the people seized the Government and invited the United States in because United States didn’t claim it at once.

    The title to it was clarified later and — and, so, we have the Florida parishes because there was a doubt.

    But, at least as to the sea, there was no doubt because that’s where they were going and they bought the mainland and the adjacent islands out to the open sea, and they meant to give it to us because there was no other state to use that territory below or south of Louisiana.

    Now, I’d like to say this.

    Jack P. F. Gremillion:

    The — when the Congress, in 1811, said that we were to have a state, listen to the language they used.

    The area contained within the following limits, and then they set the limits.

    That’s on page 70 of our brief — of our appendix — the appendix to our brief.

    And, they set the limits and they described these limits as surely and as definitely, and as clearly as people could do it now.

    I agree that the submerged lands didn’t attract the attention that the waters did in those days.

    But, certainly, no one had in mind that there was a foreign belt or an International belt between our mainland and islands adjacent to our coast.

    And, when they said three leagues from our coast in the Enabling Act, they were drawing, and we can prove that they were drawing, a line which encompassed the islands as they had been were.

    And, I say that by any legal tests, Louisiana is entitled to that much.

    I — I believe that Mr. Wilkinson had made it abundantly clear that every official Act of our Government concerning the Gulf of Mexico, including the Submerged Lands Act which comes from the Congress and from the President, set three leagues as our measure.

    I say it would be utterly meaningless to say that Louisiana is to have these adjacent islands — adjacent islands but not the land under the water which makes them adjacent.

    If that land were in some International area, the islands could not be adjacent.

    And, I think we are entitled to so much.

    I should like to close this way.

    The Government’s brief here, the last brief, on page 3 talks about “the additional provisions the Gulf states could obtain submerged land out to three leagues if they could prove that they had boundaries that far out when they entered the Union or if such boundaries were thereafter approved by Congress did not reflect a congressional view that such boundaries were possible.

    I do not think that this Court can accept the view that the Congress and the President satisfied the Gulf state by presenting a will of the wisp that could not be realized.

    I think we are entitled to proof.

    I think as a matter of fact, the Enabling Act considered with the purchase proves of itself that we have three leagues and three leagues from the coast because that is the language of the Enabling Act.

    I think all that really and rightfully remains is for us to show where is the coast, and I hope this Court will give us the opportunity to do that.