Tidelands Controversy

By: Price Daniel, Sr.

Type: General Entry

Published: 1976

Updated: August 12, 2020

The tidelands controversy between the United States and Texas involved the title to 2,440,650 acres of submerged land in the Gulf of Mexico between low tide and the state's Gulfward boundary three leagues (10.35 miles) from shore. Texas, first acquiring this land by establishing and maintaining itself as an independent nation, reserved this as well as all other unsold land when it entered the Union in 1845. Ownership of the property by the state of Texas was recognized by officials of the United States for more than 100 years. After oil was discovered under state leases, applicants for cheaper federal leases and federal officials began to assert national ownership in the same manner as they had done against California and other coastal states. The contest was not confined to Texas. All states became concerned over their long-recognized titles to lands beneath their navigable waters. It became a national issue, resulting in three Supreme Court decisions against the states, three acts of Congress in favor of the states, two presidential vetoes against the states, and a major issue in a presidential campaign, before the states finally won the victory. It was the most serious conflict of the century between the states and the federal government. The federal claims were branded as an attempted "expropriation" and "steal" by outraged officials of Texas and many of the other states. In 1949 a statewide public opinion poll reported that the people of Texas considered it to be the most important public issue facing the state. Public indignation ran higher in Texas than elsewhere because this land had been dedicated to and was a source of revenue for the public school fund (see AVAILABLE SCHOOL FUND; PERMANENT SCHOOL FUND). Furthermore, Texas held title not only under the general rule of law theretofore applicable to all states, but under the specific provisions of the Annexation Agreement between the Republic of Texas and the United States. State officials, the Texas legislature, the Democratic and Republican state conventions, the Texas congressional delegation, and many citizens groups resolved to resist the federal claims and seek congressional action recognizing continued state ownership.

The history of the Texas side of this controversy began in 1836 at San Jacinto, where Texas won its independence from Mexico. While still on the battlefield, Gen. Sam Houston sketched out the boundaries of the new nation. They were enacted into law by the First Congress of the Republic of Texas on December 19, 1836. The boundary in the Gulf was described as "beginning at the mouth of the Sabine river, and running West along the Gulf of Mexico three leagues from land." In 1837 this boundary act was sent to President Andrew Jackson, and it was read to the United States Senate. With full knowledge, the United States officially recognized the independence of the Republic of Texas, and President Jackson said, "The title of Texas to the territory she claims is identified with her independence." With its own navy the Republic of Texas maintained and defended its three-league boundary in the Gulf of Mexico during the nine years that it existed as an independent nation. This was the boundary in the Gulf when negotiations were held between the Republic of Texas and the United States for annexation. The Congress of Texas insisted that the United States recognize and defend the established boundaries. Houston would not agree to annexation until he obtained an assurance from President James K. Polk on this subject. On June 15, 1845, Polk vowed to "maintain the Texian title to the extent which she claims it to be." Before Texas entered the Union, the Supreme Court of the United States had already written two decisions holding that lands beneath all navigable waters within the boundaries of the original states "were not granted by the Constitution to the United States, but were reserved to the States respectively" and that "the new States have the same rights, sovereignty and jurisdiction over this subject as the original States." One of these decisions (Pollard v. Hagan, 3 How. 212, 1845) was later cited with approval and followed by fifty-two Supreme Court decisions and 244 federal and state court decisions. In addition to this already established general rule of law under which Texas would retain ownership of its submerged lands after admission as a new state, the Republic of Texas received the following specific assurances relating to all of its lands in the Annexation Agreement tendered by the United States on March 1, 1845: "That Congress doth consent that the territory properly included within and rightfully belonging to the Republic of Texas, may be erected into a new State, to be called the State of Texas...and said State shall also retain all the vacant and unappropriated lands lying within its limits."

After the war Mexican War the Texas legislature passed a resolution urging its congressional delegation to insist on the original Texas boundary being followed in the treaty with Mexico, and this boundary commencing "in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande" was written into the Treaty of Guadalupe Hidalgo in 1848. Texas's three-league Gulfward boundary was again recognized and followed in the Gadsden Treaty between the United States and Mexico in 1853. On many other occasions between 1845 and 1948 the United States recognized this boundary and Texas ownership of the submerged lands within such boundary. When federal officials needed sites for lighthouses, fortifications, and jetties in the Gulfward areas, they obtained grants from the Texas legislature. Thus, with no adverse claims against the title to this property, the Texas legislature authorized the School Land Board to execute mineral leases on this land for the benefit of the public school fund. These leases, sold to the highest bidders, had yielded many millions of dollars before any federal claims were asserted. Other coastal states, relying upon their general title under the Constitution and the long line of Supreme Court opinions, were receiving revenues from oil, kelp, shell, sand, marl, fish, ports, docks, piers, and expensive building sites on filled land along the coasts of Florida and New York. The earliest adverse claims against any of the states were asserted by applicants for federal oil leases under the federal law, which granted leases at twenty-five cents per acre on any undeveloped lands owned by the United States. This was not one one-hundredth of the price per acre averaged by the states for the leases they had sold under state laws. By 1950 there were 1,031 federal lease applicants who had blanketed the coasts of Texas, California, and Louisiana with applications for leases on lands already covered by state leases.

The first lawsuit asserting federal ownership of tidelands was filed by the United States against California in 1946. The federal claim was based on allegations that original ownership of the land was held by the United States before California was made a state; that former Supreme Court cases adjudicating state ownership were erroneous and should be overruled; that long recognition of state ownership by federal officials did not bar federal action; that paramount federal governmental rights in the tidelands area were inconsistent and incompatible with state ownership; and that no state could hold ownership of lands underlying the marginal sea belt below low tide. Because this lawsuit was based on claims broad enough to be applied against other states, the attorneys general of all other states filed an amicus curiae brief in opposition to the federal claim, and Marion Price Daniel, Sr., (attorney general for the state of Texas, 1947–53) presented oral argument on their behalf before the Supreme Court of the United States. In 1946, while the suit was pending, Congress passed a bill recognizing and confirming state ownership of the property, but this bill was vetoed by President Harry Truman.

In 1947, by a split decision, the Supreme Court decided against California in an opinion by Justice Hugo L. Black. The language and theory of this opinion were so shocking to state officials and leading lawyers of the nation that the American Bar Association, the Council of State Governments, the Governors Conference, most of the state legislatures, the National Association of Attorneys General, and the American Title Association immediately urged that Congress again act to overthrow the result and theories announced in the decision. It became one of the most widely criticized opinions in the history of the court. Justice Black conceded that the states had claimed and possessed their submerged lands in good faith under the language of numerous Supreme Court decisions indicating "that the court then believed that States not only owned tidelands and soil under navigable inland waters, but also owned soils under navigable waters within their territorial jurisdiction, whether inland or not." But since oil and other property involved might be necessary to the national defense and the conduct of international affairs, Justice Black reasoned that the case should not be controlled by "bare legal title" or "mere property ownership." He said: "The crucial question on the merits is not merely who owns the bare legal title to the lands under the marginal sea. The United States here asserts rights in two capacities transcending those of a mere property owner."

It was the new theory that federal "paramount rights" may be exercised to take oil and other property without ownership and without compensation that excited fears that the rule might be applied equally to lands beneath inland waters of all the states and eventually to private property. However, until after the presidential election of 1948, there was still hope that Texas's special title retained under the Annexation Agreement would be recognized by federal officials and that this state would not be sued. On the day he argued the California case, March 13, 1947, United States Attorney General Tom C. Clark handed to the press a statement saying that a decision in that case would not apply to Texas; that "as a Republic it owned all of the lands within its boundaries, including the marginal sea commonly called tidelands. This area was under the sovereignty of Texas during the Republic and was retained by it under the provisions of the Act of Admission." During the presidential campaign, President Truman said in Austin on September 20, 1948: "Texas is in a class by itself; it entered the Union by Treaty." Even former Secretary of the Interior Harold L. Ickes, a champion of the fight against state ownership, said in a national television address, on October 14, 1948: "Parenthetically, Texas may have the legal right to its tidelands, because it came into the Union voluntarily and as an independent country."

Texas went Democratic in the 1948 election, and shortly after the election President Truman directed the attorney general to file suit against Texas. Motion for summary judgment (without hearing evidence) was made on behalf of the United States. Texas made a strong plea, supported by eleven of the world's authorities on international law, in support of its title to the property as an independent nation; its retention of the land under the terms of the international agreement by which it became a state; and its right to introduce evidence on both points. By a vote of four to three, the Supreme Court decided against Texas, thereby, for the first time in its history, denying a state the right to introduce evidence in a contested lawsuit. The majority opinion by Justice William O. Douglas recognized Texas's ownership as a republic, but held that transfer of national sovereignty to the United States and admission as a state on an equal footing with the other states accomplished a transfer of this land to the United States. On motion for rehearing, again supported by leading authorities on the interpretation of international agreements, Texas urged that transfer of national sovereignty does not carry with it the ownership of lands specifically retained by solemn agreement; that the "equal footing" provision was not submitted to or accepted by the Republic of Texas; and that there was no "equal footing" as far as lands and debts were concerned, because Texas was the only state required to assume its own public debt and permitted to retain all of its unsold lands. The court corrected its erroneous citation on "equal footing" but did not change the result of its decision. In 1952 Congress again passed a bill restoring to the states the title to all submerged lands within their respective boundaries, but for the second time, President Truman vetoed the bill.

In the presidential campaign of 1952 Gen. Dwight D. Eisenhower made special recognition of the rights of Texas under the Annexation Agreement as well as the long-recognized rights of the other states under earlier Supreme Court decisions. He declared in favor of state ownership legislation and said he would sign the bill if it were enacted again by Congress. The Republican platform agreed. On the other hand, the Democratic nominee, Adlai Stevenson, said he would veto such a bill if enacted again by Congress. In Texas this became the foremost issue in the 1952 campaign. The state Democratic Convention placed Stevenson's name on the ticket but then passed a resolution urging all members of the Texas Democratic party to vote for Eisenhower, and Eisenhower carried the state in the November election.

In 1953 Congress made the restoration of submerged lands one of the first orders of business. Price Daniel, then United States senator from Texas, was coauthor of the legislation in the Senate, where it survived what was then the longest filibuster in Senate history (twenty-seven days) and finally won a substantial majority in both houses. President Eisenhower signed the measure on May 22, 1953. One of the pens used by the president in affixing his signature was presented to the Texas Memorial Museum in a ceremony conducted by the University of Texas. As an aftermath, one last battle was pitched against Texas in 1957, when the Republican attorney general, Herbert Brownell, filed suit against the state, alleging that its legal boundary and therefore its tideland ownership extended only three miles instead of three leagues (10.35 miles) into the Gulf. This was resented in Texas, primarily because President Eisenhower, the Congress, and Attorney General Brownell himself had specifically recognized three leagues as the extent of the Texas boundary and ownership during the hearings and pendency of the 1953 legislation. The Brownell action sought to take away two-thirds of the Texas property. President Eisenhower publicly disagreed with the position taken by the Department of Justice with respect to the Texas boundary. Nevertheless, Texas was forced to defend its boundary in the Supreme Court of the United States. Texas prevailed in this lawsuit, which was decided on June 1, 1960, and now holds thoroughly litigated and firmly established title to its three-league Gulfward boundary and the 2,440,650 acres within such boundary. As of August 31, 1987, the General Land Office reported that the Texas public school fund had received nearly $2 billion from leases, rentals, and royalties on this property, and that forty oil wells and 393 gas wells had been discovered.

Ernest R. Bartley, The Tidelands Oil Controversy: A Legal and Historical Analysis (Austin: University of Texas Press, 1953). Price Daniel, Sovereignty and Ownership in the Marginal Sea and Their Relation to Problems of the Continental Shelf (Austin, 1950). "Symposium on the Texas Tidelands Case," Baylor Law Review 3 (Winter 1951). The "Tidelands" Decision of the Supreme Court of the United States (Austin: State of Texas, n.d.).

The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this entry.

Price Daniel, Sr., “Tidelands Controversy,” Handbook of Texas Online, accessed August 19, 2022, https://www.tshaonline.org/handbook/entries/tidelands-controversy.

Published by the Texas State Historical Association.

August 12, 2020