12/6/2019
Texas’ Sovereignty & Borders
Who gave sovereignty to the Sovereign?
Scott F. Cline [email protected]
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Trace Title of Texas Back to Sovereign • If we traced the title of your property, where does it begin? • Does title trace back to Spain?
• Does title trace back to Mexico? Texas?
• How did the sovereign get title?
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How Did This Happen?
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How Did This Happen?
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How Did This Happen?
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How Does a Sovereign Acquire Title
• Inherit
• Right of Conquest
• How else?
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Right of Discovery
• 1454 – Romanus Pontifex (Papal Bull)
• Pope Nicholas directed King Alfonso to “capture, vanquish and subdue…” any non- Christian lands…[and] “to take all their possessions and property”
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Right of Discovery
• In 1492 Columbus sailed with the understanding that he was authorized to take possession of any lands he discovered not under control of any Christian prince
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Inter Caetera – 1493
• Inter Caetera and subsequent Papal Bulls and treaties awarded new lands to the discovering Christian nation
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Inter Caetera
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• Can proclamations in 500+ year-old Papal Bulls remain in effect today?
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• Doctrine of Discovery in American Jurisprudence
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Johnson v. M’Intosh • 21 U.S. 543 (1823) – by Chief Justice Marshall • Property dispute – ejectment action
• 2 parties with competing property claims
• Johnson from the Piankashaw, M’Intosh from US
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Johnson v. M’Intosh • Justice Marshal cited the Inter Caetera and applied the Doctrine of Discovery • Discovering European power gains sovereignty • Discovering power gains right to extinguish indigenous peoples’ “right of occupancy” • US inherited British preemption of Native American lands
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Tee-Hit-Ton Indians v. US
• 348 U.S. 272 (1955)
• Tee-Hit-Tons sought compensation for taking by US of timber cut on tribal lands
• Issue – is that a taking under the 5th Amendment?
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Tee-Hit-Ton Indians v. US
• Concerned US’ deforestation of Tongass
• Cites Johnson to apply Right of Discovery • Timber taken from tribal occupied lands not compensable under 5th Amendment • Tribe only entitled to right of occupancy under revocable grant from US
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City of Sherrill, N.Y. v. Oneida Indian Nation of New York
• 544 U.S. 197 (2005)
• Re-purchased original tribal lands
• Oneida tribe sought tax exemption on the re-purchased land
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City of Sherrill, N.Y. v. Oneida Indian Nation of New York
• Re-purchase did not restore tribal sovereignty
• 8-1 decision, majority opinion by Ginsburg
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City of Sherrill, N.Y. v. Oneida Indian Nation of New York
• “Under the ‘doctrine of discovery’ fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign – first discovering European nation and later the original States and the United States.”
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Who Discovered Texas
• Cabeza de Vaca?
• Francisco Vazquez de Coronado?
• Hernando de Soto?
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Who Discovered Texas
• Alonso Alvarez de Pineda
• Sent by Governor of Santiago, modern-day Jamaica • June 24, 1519 – Roman Catholic Feast Day of Corpus Christi de Pineda sailed into and named Corpus Christi Bay
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Who Discovered Texas
• First known document in TX history
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Spanish Actions
• Discovered TX, enough?
• Possession? Control?
• Extent of the grant?
• What else is needed?
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Spanish Actions
• Until la Salle, Spain did not pay attention to land north of the Rio Grande River
• Before la Salle, missions, presidios and outposts located primarily along Rio Grande
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Rene-Robert Cavalier, Sieur de la Salle
• 1682, sailed down Mississippi River and claimed Louisiana for King Louis XIV • Claimed all land drained by the Mississippi River for France • 1685, founded Fort Saint-Louis on Garcitas Creek near Victoria, TX
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Spanish Actions • Spain learned of the incursion in 1686 when a French deserter was captured in Santa Domingo • After discovery of la Salle’s encampment, Spain established missions in east TX • Mission San Francisco de los Tejas, near Lufkin – 1690
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Louis Juchereau de St. Denis
• In 1713 founded Natchitoches
• In 1714 traveled unopposed from Natchitoches on Red River to Spanish outposts on the Rio Grande • Spurred second wave of Spanish development of missions in TX
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First Capital of Texas
• Los Adaes – founded 1721; TX provincial capital 1729-1770
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1763 – end of French and Indian War/Seven Years’ War with Great Britain, France • One result was transfer of LA from France to Spain
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Spanish Land Ownership
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Texas Borders in Flux
• 1682 – la Salle claims LA for France
• 1763 – LA transferred back to Spain
• 1800 – Napoleon reclaims ownership of LA
• 1803 – Louisiana Purchase
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Louisiana Purchase
• Purchase occurred in 1803
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• Boundary between Spanish province of Texas and US in dispute
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Western Border of LA Purchase
• Spain claimed to Arroyo Hondo/Calcasieu
• France alleged borders same as before 1763 – all land drained by the Mississippi
• Jefferson claimed border extended to Rio Grande based on la Salle
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Neutral Ground
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Neutral Ground Agreement, 1806-1821
• November 6, 1806 – US Gen. James Wilkinson and Spanish Lt. Col. Simon de Herrera sign agreement • Declared the disputed territory neutral ground until established by governments • This lawless area attracted exiles, deserters, political refugees and various criminals
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Wars, Treaties & Laws
• Adams-Onis – Sabine & Red River
• Treaties of Velasco – Rio Grande
• Mexican-American War/Treaty of Guadalupe Hidalgo – Mexican Cession
• Compromise of 1850 – TX border with NM
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Adams-Onis Treaty 1819-1821
• Set boundaries between US and Spain
• Along the West bank of Sabine River then North at 32nd Parallel to Red River – ended Neutral Zone
• Along the South bank of Red River until it reaches 100th Meridian as per Melish’s Map of 1818, then North along 100th Meridian to the Arkansas River
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Adams-Onis Treaty
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Adams-Onis Treaty – Problems
• Melish’s Map showed 100th Meridian 90 miles east of true location
• Melish’s Map failed to show that Red River forked 50 miles east of 100th Meridian • No Western European had ascended the Red River
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Melish Map 1818
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Adams-Onis Treaty Litigation
• US v. Texas
• 162 U.S. 1 (1896) – TX loses Greer County
• True 100th Meridian determines border
• Set boundaries at Sabine and the Prairie Dog Town Fork of Red River
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Greer County, Texas
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Greer County, Texas
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Red River Boundary Disputes
• From 1896 - 2017, numerous disputes over Red River determined by SCOTUS
• What did treaty negotiators believe the boundary to be when treaty presented for ratification? • TX boundary extends only to south cut bank of river as it existed in 1819 • No royalties to TX for riverbed oil and gas
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Red River Boundary Disputes
• Erosion and accretion – natural and gradual changes in the riverbank over time • Avulsion – natural or otherwise, when the river suddenly creates a new channel • Land owner loses or gains property through erosion or accretion but not avulsion
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Red River Boundary Disputes
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Rio Grande Border Disputes
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Rio Grande Border Disputes
• April 21, 1836 – Battle of San Jacinto
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Rio Grande Border Disputes
• Treaties of Velasco – May 14, 1836
• Made between Santa Anna and the Republic of Texas • There were actually 2 treaties – one public and one secret
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Treaties of Velasco
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Treaties of Velasco
• Santa Anna promised not to bring troops north of Rio Grande
• TX claimed its boundary extended to Rio Grande – not recognized by Mexico
• Polk promised US would defend Rio Grande as border if TX agreed to annexation
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Mexican-American War
• Nueces Strip remained contested area until the end of Mexican-American War • After Thornton Affair, Polk declares Mexico “…shed American blood on American soil” • Treaty of Guadalupe Hidalgo signed Feb. 2, 1848 – Mexican Cession • Rio Grande confirmed as southern boundary for TX and US
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Treaty of Guadalupe Hidalgo
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Compromise of 1850
• TX relinquished claims to east bank of Rio Grande north of El Paso
• US pays $10M for TX’s debt; TX retains public land
• Western panhandle of OK created to conform TX’s northernmost border with Missouri Compromise
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Compromise of 1850
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Compromise of 1850
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Compromise of 1850
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Compromise of 1850
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Compromise of 1850
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Compromise of 1850
• Which president signed the bill giving TX its present borders?
• Millard Fillmore
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Scott F. Cline
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