Equal Footing Doctrine

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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

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: 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: 3 Stat. 489, 492 (1819).
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: Coyle v. Smith, 221 U.S. 559 (1911).
6: 221 U.S. at 567.
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. v. Hyatt, 136 S. Ct. 1277, 1282 (2016); Shelby Cnty. v. Holder, 570 U.S. 529 (2013) (citing Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)).
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: 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: United States v. Texas, 339 U.S. 707, 716 (1950); Stearns v. Minnesota, 179 U.S. 223, 245 (1900).
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: Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886).
13: Wilson v. Cook, 327 U.S. 474 (1946).
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. Co., 223 U.S. 390 (1912).
15: Draper v. United States, 164 U.S. 240 (1896), following United States v. McBratney, 104 U.S. 621 (1882).
16: Dick v. United States, 208 U.S. 340 (1908); Ex parte Webb, 225 U.S. 663 (1912).
17: United States v. Sandoval, 231 U.S. 28 (1913).
18: Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999).
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: Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 170 (1892).