ArtIV.S3.C1.1.1.2 Admission of and the Rights of New States: Doctrine and Practice

Article IV, Section 3, Clause 1:

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

If the doctrine rested merely on construction of the declarations in the admission acts, then the conditions and limitations imposed by Congress and agreed to by the states in order to be admitted would nonetheless govern, since they must be construed along with the declarations. Again and again, however, in adjudicating the rights and duties of states admitted after 1789, the Supreme Court has referred to the condition of equality as if it were an inherent attribute of the Federal Union.1 That the doctrine is of constitutional stature was made evident at least by the time of the decision in Pollard's Lessee , if not before.2 Pollard's Lessee involved conflicting claims by the United States and Alabama of ownership of certain partially inundated lands on the shore of the Gulf of Mexico in Alabama. The enabling act for Alabama had contained both a declaration of equal footing and a reservation to the United States of these lands.3 Rather than an issue of mere land ownership, the Court saw the question as one concerning sovereignty and jurisdiction of the states. Because the original states retained sovereignty and jurisdiction over the navigable waters and the soil beneath them within their boundaries, retention by the United States of either title to or jurisdiction over common lands in the new states would bring those states into the Union on less than an equal footing with the original states. This, the Court would not permit. Alabama is, therefore, entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it, before she ceded it to the United States. To maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding. . . . [T]o Alabama belong the navigable waters and soils under them, in controversy in this case, subject to the rights surrendered by the Constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights. 4

Finally, in 1911, the Court invalidated a restriction on the change of location of the state capital, which Congress had imposed as a condition for the admission of Oklahoma, on the ground that Congress may not embrace in an enabling act conditions relating wholly to matters under state control.5 In an opinion, from which Justices Holmes and McKenna dissented, Justice Lurton argued: The power is to admit ‘new States into this Union,’ ‘This Union’ was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power, as including States whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission.6

The equal footing doctrine is generally a limitation upon the terms by which Congress admits a state.7 That is, states must be admitted on an equal footing in the sense that Congress may not exact conditions solely as a tribute for admission, but it may, in the enabling or admitting acts or subsequently impose requirements that would be or are valid and effectual if the subject of congressional legislation after admission.8 Thus, Congress may embrace in an admitting act a regulation of commerce among the states or with Indian tribes or rules for the care and disposition of the public lands or reservations within a state. [I]n every such case such legislation would derive its force not from any agreement or compact with the proposed new State, nor by reason of its acceptance of such enactment as a term of admission, but solely because the power of Congress extended to the subject, and, therefore, would not operate to restrict the State’s legislative power in respect of any matter which was not plainly within the regulating power of Congress.9

Until recently the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or property rights.10 Broadly speaking, every new state is entitled to exercise all the powers of government which belong to the original states of the Union.11 It acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property throughout its limits even as to federal lands, except where the Federal Government has reserved12 or the state has ceded some degree of jurisdiction to the United States, and, of course, no state may enact a law that would conflict with the constitutional powers of the United States. Consequently, it has jurisdiction to tax private activities carried on within the public domain (although not to tax the Federal lands), if the tax does not constitute an unconstitutional burden on the Federal Government.13 Statutes applicable to territories, e.g., the Northwest Territory Ordinance of 1787, cease to have any operative force when the territory, or any part thereof, is admitted to the Union, except as adopted by state law.14 When the enabling act contains no exclusion of jurisdiction as to crimes committed on Indian reservations by persons other than Indians, state courts are vested with jurisdiction.15 But the constitutional authority of Congress to regulate commerce with Indian tribes is not inconsistent with the equality of new states,16 and conditions inserted in the New Mexico Enabling Act forbidding the introduction of liquor into Indian territory were therefore valid.17 Similarly, Indian treaty rights to hunt, fish, and gather on lands ceded to the Federal Government were not extinguished by statehood.18 These usufructuary rights were subject to reasonable state regulation, and hence were not irreconcilable with state sovereignty over natural resources.19

Admission of a state on an equal footing with the original states involves the adoption as citizens of the United States of those whom Congress makes members of the political community and who are recognized as such in the formation of the new state.20

Judicial Proceedings Pending on Admission of New States

Whenever a territory is admitted into the Union, the cases pending in the territorial court that are of exclusive federal cognizance are transferred to the federal court having jurisdiction over the area; cases not cognizable in the federal courts are transferred to the tribunals of the new state, and those over which federal and state courts have concurrent jurisdiction may be transferred either to the state or federal courts by the party possessing the option under existing law.21 Where Congress neglected to make provision for disposition of certain pending cases in an enabling act for the admission of a state to the Union, a subsequent act supplying the omission was held valid.22 After a case, begun in a United States court of a territory, is transferred to a state court under the operation of the enabling act and the state constitution, the appellate procedure is governed by the state statutes and procedures.23

The new state, without the express or implied assent of Congress, cannot enact that the records of the former territorial court of appeals should become records of its own courts or provide by law for proceedings based thereon.24

Property Rights of States to Soil Under Navigable Waters

The equal footing doctrine has had an important effect on the property rights of new states to soil under navigable waters25 and tidally influenced waters.26 In Pollard's Lessee v. Hagan ,27 as was observed above, the Court held that the original states had reserved to themselves the ownership of the shores of navigable waters and the soils under them, and that under the principle of equality the title to the soils beneath navigable water passes to a new state upon admission. The principle of this case, which also applies to tidally influenced waters, supplies the rule of decision in many property-claims cases.28

After refusing to extend the inland-water rule of Pollard’s Lessee to the three mile marginal belt under the ocean along the coast,29 the Court applied the principle in reverse in United States v. Texas .30 Because the original states had been found not to own the soil under the three mile belt, Texas, which concededly did own this soil before its annexation to the United States, was held to have surrendered its dominion and sovereignty over it, upon entering the Union on terms of equality with the existing states. To this extent, the earlier rule that unless otherwise declared by Congress the title to every species of property owned by a territory passes to the state upon admission31 has been qualified. However, when Congress, through passage of the Submerged Lands Act of 1953,32 surrendered its paramount rights to natural resources in the marginal seas to certain states, without any corresponding cession to all states, the transfer was held to entail no abdication of national sovereignty over control and use of the oceans in a manner destructive of the equality of the states.33

While the territorial status continues, the United States has power to convey property rights, such as rights in soil below the high-water mark along navigable waters,34 or the right to fish in designated waters,35 which will be binding on the state.


  1.  Jump to essay-1 Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914); Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 434 (1892); Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891); Weber v. Harbor Commissioners, 85 U.S. (18 Wall.) 57, 65 (1873).
  2.  Jump to essay-2 Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845). See Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Permoli v. Municipality No. 1 of New Orleans, 44 U.S. (3 How.) 589 (1845).
  3.  Jump to essay-33 Stat. 489, 492 (1819).
  4.  Jump to essay-4 Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 228–29 (1845) (emphasis supplied). See also id. at 222–23. A unanimous Court explained the rule on state ownership of navigable waters in PPL Montana, LLC v. Montana, 565 U.S. 576 (2012). Under the equal footing doctrine, a State, upon entering the Union, gains title to the beds of waters then navigable or tidally influenced, subject only to federal powers under the Constitution (e.g., the Commerce Clause). By contrast, the United States retains any title vested in it to lands beneath waters not then navigable or tidally influenced. For the distinct purpose of the equal footing doctrine, navigable waters are those waters used, or susceptible to use, for trade and travel by customary means at the time of statehood. Furthermore, the navigability of rivers is determined on a segment-by-segment basis, and lands under portions of a stream that were impassable at statehood were not conveyed by force of the doctrine.
  5.  Jump to essay-5 Coyle v. Smith, 221 U.S. 559 (1911).
  6.  Jump to essay-6 221 U.S. at 567.
  7.  Jump to essay-7 See South Carolina v. Katzenbach, 383 U.S. 301, 328–29 (1966). However, in recent years the Court has relied on the general principle of constitutional equality among the states to strike down both federal and state laws. See, e.g., Franchise Tax Bd. of Cal. v. Hyatt, 136 S. Ct. 1277, 1282 (2016); Shelby Cty. v. Holder, 570 U.S. 529 (2013) (citing Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)).
  8.  Jump to essay-8 See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204–05 (1999); Coyle v. Smith, 221 U.S. 559, 573–74 (1911); Bolln v. Nebraska, 176 U.S. 83, 89 (1900); Escanaba Co. v. City of Chicago, 107 U.S. 678, 688 (1883); Withers v. Buckley, 61 U.S. (20 How.) 84, 92 (1857); Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 224–25, 229–30 (1845).
  9.  Jump to essay-9 Coyle v. Smith, 221 U.S. 559, 574 (1911). Examples include Stearns v. Minnesota, 179 U.S. 223 (1900) (congressional authority to dispose of and to make rules and regulations respecting the property of the United States); United States v. Sandoval, 231 U.S. 28 (1913) (regulating commerce with Indian tribes); United States v. Chavez, 290 U.S. 357 (1933) (same); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9–10 (1888) (prevention of interference with navigability of waterways under Commerce Clause).
  10.  Jump to essay-10 United States v. Texas, 339 U.S. 707, 716 (1950); Stearns v. Minnesota, 179 U.S. 223, 245 (1900).
  11.  Jump to essay-11 Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 223 (1845); McCabe v. Atchison T. & S.F. Ry., 235 U.S. 151 (1914).
  12.  Jump to essay-12 Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886).
  13.  Jump to essay-13 Wilson v. Cook, 327 U.S. 474 (1946).
  14.  Jump to essay-14 Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); Sands v. Manistee River Imp. Co., 123 U.S. 288, 296 (1887); see also Withers v. Buckley, 61 U.S. (20 How.) 84, 92 (1858); Huse v. Glover, 119 U.S. 543 (1886); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9 (1888) ; Cincinnati v. Louisville & Nashville R.R., 223 U.S. 390 (1912).
  15.  Jump to essay-15 Draper v. United States, 164 U.S. 240 (1896), following United States v. McBratney, 104 U.S. 621 (1882).
  16.  Jump to essay-16 Dick v. United States, 208 U.S. 340 (1908); Ex parte Webb, 225 U.S. 663 (1912).
  17.  Jump to essay-17 United States v. Sandoval, 231 U.S. 28 (1913).
  18.  Jump to essay-18 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999).
  19.  Jump to essay-19 Id. In Herrera v. Wyoming, 139 S. Ct. 1686, 1696–97 (2019), the Supreme Court confirmed that Mille Lacs upended the reasoning of Ward v. Race Horse, 163 U.S. 504 (1896), which had applied the equal footing doctrine to overrule a treaty granting hunting rights to certain tribes. In Herrera , the Court said that [s]tatehood is irrelevant to an analysis of whether Congress abrogated an Indian treaty right . . . . unless a statehood Act otherwise demonstrates Congress’ clear intent to abrogate a treaty, or statehood appears as a termination point in the treaty. 139 S. Ct. at 1697.
  20.  Jump to essay-20 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 170 (1892).
  21.  Jump to essay-21 Baker v. Morton, 79 U.S. (12 Wall.) 150, 153 (1871).
  22.  Jump to essay-22 Freeborn v. Smith, 69 U.S. (2 Wall.) 160 (1865).
  23.  Jump to essay-23 John v. Paullin, 231 U.S. 583 (1913).
  24.  Jump to essay-24 Hunt v. Palao, 45 U.S. (4 How.) 589 (1846). Cf. Benner v. Porter, 50 U.S. (9 How.) 235, 246 (1850).
  25.  Jump to essay-25 Navigable waters, for equal footing purposes, are those waters used, or susceptible to use, for trade and travel at the time of statehood. PPL Montana, LLC v. Montana, 565 U.S. 576, 590–92 (2012).
  26.  Jump to essay-26 E.g., Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891).
  27.  Jump to essay-27 44 U.S. (3 How.) 212, 223 (1845). See also Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410 (1842).
  28.  Jump to essay-28 See PPL Montana, LLC v. Montana, 565 U.S. 576 (2012) (Montana not able to charge rent to hydroelectric facilities located on portions of rivers that were impassable when Montana became a State); Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) (confirming language in earlier cases recognizing state sovereignty over tidal but nonnavigable lands); Utah Division of State Lands v. United States, 482 U.S. 193 (1987) (applying presumption against congressional intent to defeat state title to find inadequate federal reservation of lake bed); Idaho v. United States, 533 U.S. 262 (2001) (presumption rebutted by indications—some occurring after statehood—that Congress intended to reserve certain submerged lands for benefit of the Coeur d'Alene Tribe); Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977) (doctrine requires utilization of state common law rather than federal to determine ownership of land underlying river that is navigable but not an interstate boundary); Shively v. Bowlby, 152 U.S. 1 (1894) (whether Oregon or a pre-statehood grantee from the United States of riparian lands near mouth of Columbia River owned soil below high-water mark).
  29.  Jump to essay-29 United States v. California, 332 U.S. 19, 38 (1947); United States v. Louisiana, 339 U.S. 699 (1950).
  30.  Jump to essay-30 339 U.S. 707, 716 (1950). See United States v. Maine, 420 U.S. 515 (1975) (unanimously reaffirming the California, Louisiana, and Texas cases).
  31.  Jump to essay-31 Brown v. Grant, 116 U.S. 207, 212 (1886).
  32.  Jump to essay-3267 Stat. 29, 43 U.S.C. §§ 1301-1315.
  33.  Jump to essay-33 Alabama v. Texas, 347 U.S. 272, 274–77, 281 (1954). Justice Black and Douglas dissented.
  34.  Jump to essay-34 Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v. St. Louis, 201 U.S. 332 (1906).
  35.  Jump to essay-35 United States v. Winans, 198 U.S. 371, 378 (1905); Seufert Bros. v. United States, 249 U.S. 194 (1919). A fishing right granted by treaty to the Seneca Nation of Indians does not necessarily preclude the application to Seneca citizens of state game laws regulating the time and manner of taking fish. New York ex rel. Kennedy v. Becker, 241 U.S. 556 (1916). See also Metlakatla Indians v. Egan, 369 U.S. 45, 54, 57–59 (1962); Kake Village v. Egan, 369 U.S. 60, 64–65, 67–69, 75–76 (1962). But it has been held to be violated by exacting a license fee that is both regulatory and revenue-producing. Tulee v. Washington, 315 U.S. 681 (1942).