12/6/2019 Texas’ Sovereignty & Borders Who gave sovereignty to the Sovereign? Scott F. Cline [email protected] 1 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? 2 1 12/6/2019 How Did This Happen? 3 How Did This Happen? 4 2 12/6/2019 How Did This Happen? 5 How Does a Sovereign Acquire Title • Inherit • Right of Conquest • How else? 6 3 12/6/2019 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” 7 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 8 4 12/6/2019 Inter Caetera – 1493 • Inter Caetera and subsequent Papal Bulls and treaties awarded new lands to the discovering Christian nation 9 Inter Caetera 10 5 12/6/2019 • Can proclamations in 500+ year-old Papal Bulls remain in effect today? 11 • Doctrine of Discovery in American Jurisprudence 12 6 12/6/2019 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 13 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 14 7 12/6/2019 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? 15 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 16 8 12/6/2019 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 17 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 18 9 12/6/2019 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.” 19 Who Discovered Texas • Cabeza de Vaca? • Francisco Vazquez de Coronado? • Hernando de Soto? 20 10 12/6/2019 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 21 Who Discovered Texas • First known document in TX history 22 11 12/6/2019 Spanish Actions • Discovered TX, enough? • Possession? Control? • Extent of the grant? • What else is needed? 23 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 24 12 12/6/2019 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 25 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 26 13 12/6/2019 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 27 First Capital of Texas • Los Adaes – founded 1721; TX provincial capital 1729-1770 28 14 12/6/2019 1763 – end of French and Indian War/Seven Years’ War with Great Britain, France • One result was transfer of LA from France to Spain 29 Spanish Land Ownership 30 15 12/6/2019 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 31 Louisiana Purchase • Purchase occurred in 1803 32 16 12/6/2019 • Boundary between Spanish province of Texas and US in dispute 33 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 34 17 12/6/2019 Neutral Ground 35 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 36 18 12/6/2019 37 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 38 19 12/6/2019 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 39 Adams-Onis Treaty 40 20 12/6/2019 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 41 Melish Map 1818 42 21 12/6/2019 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 43 Greer County, Texas 44 22 12/6/2019 Greer County, Texas 45 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 46 23 12/6/2019 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 47 Red River Boundary Disputes 48 24 12/6/2019 Rio Grande Border Disputes 49 Rio Grande Border Disputes • April 21, 1836 – Battle of San Jacinto 50 25 12/6/2019 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 51 Treaties of Velasco 52 26 12/6/2019 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 53 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 54 27 12/6/2019 Treaty of Guadalupe Hidalgo 55 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 56 28 12/6/2019 Compromise of 1850 57 Compromise of 1850 58 29 12/6/2019 Compromise of 1850 59 Compromise of 1850 60 30 12/6/2019 Compromise of 1850 61 Compromise of 1850 • Which president signed the bill giving TX its present borders? • Millard Fillmore 62 31 12/6/2019 Scott F. Cline [email protected] 63 32.