Section 3: Admission of New States to Union; Property of United States


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...


Clause 1. Admission of New States to Union
Doctrine of the Equality of States
Judicial Proceedings Pending on Admission of New States
Property Rights of States to Soil Under Navigable Waters
Clause 2. Property of the United States
Property and Territory: Powers of Congress
Methods of Disposing of Property
Public Lands: Federal and State Powers Over
Territories: Powers of Congress Over

Clause 1. Admission of New States to Union

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 was well as of the Congress.

Doctrine of the Equality of States

"Equality of constitutional right and power is the condition of all the States of the Union, old and new."[254] This doctrine, now a truism of constitutional law, did not find favor in the Constitutional Convention. That body struck out from this section, as reported by the Committee on Detail, two sections to the effect that "new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States concerning the public debt which shall be subsisting."[255] Opposing this action, Madison insisted that "the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States."[256] Nonetheless, after further expressions of opinion pro and con, the Convention voted nine States to two to delete the requirement of equality.[257]

Prior to this time, however, Georgia and Virginia had ceded to the United States large territories held by them, upon condition that new States should be formed therefrom and admitted to the Union on an equal footing with the original States.[258] Since the admission of Tennessee in 1796, Congress has included in each State's act of admission a clause providing that the State enters the Union "on an equal footing with the original States in all respects whatever."[259] With the admission of Louisiana in 1812, the principle of equality was extended to States created out of territory purchased from a foreign power.[260] By the Joint Resolution of December 29, 1845, Texas, then an independent Nation, "was admitted into the Union on an equal footing with the original States in all respects whatever."[261]

However, 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.[262] 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.[263] 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.[264] Rather than an issue of mere land ownership, the Court saw the question as one concerning sovereignty and jurisdiction of the States. Inasmuch as 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."[265]

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.[266] 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."[267]

The equal footing doctrine is a limitation only upon the terms by which Congress admits a State.[268] 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.[269] 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."[270]

Until recently the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or property rights.[271] Broadly speaking, every new State is entitled to exercise all the powers of government which belong to the original States of the Union.[272] 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 reserved[273] or the State has ceded some degree of jurisdiction to the United States, and, of course, no State can enact a law which 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.[274] 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.[275] 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.[276] But the constitutional authority of Congress to regulate commerce with Indian tribes is not inconsistent with the equality of new States,[277] and conditions inserted in the New Mexico Enabling Act forbidding the introduction of liquor into Indian territory were therefore valid.[278] Similarly, Indian treaty rights to hunt, fish, and gather on lands ceded to the Federal Government were not extinguished by statehood. These "usufructuary" rights were subject to reasonable state regulation, and hence were not irreconcilable with state sovereignty over natural resources.[279]

Judicial Proceedings Pending on Admission of New States

Whenever a territory is admitted into the Union, the cases pending in the territorial court which 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.[281] 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.[282] 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.[283]

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 waters. In Pollard's Lessee v. Hagan,[285] 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 supplies the rule of decision in many property-claims cases.[286]

After refusing to extend the inland-water rule of Pollard's Lessee to the three mile marginal belt under the ocean along the coast,[287] the Court applied the principle in reverse in United States v. Texas.[288] Since 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 admission[289] has been qualified. However, when Congress, through passage of the Submerged Lands Act of 1953,[290] 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.[291]

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,[292] or the right to fish in designated waters,[293] which will be binding on the State.

Clause 2. Property of the United States

Clause 2. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Property and Territory: Powers of Congress

Methods of Disposing of Property

The Constitution is silent as to the methods of disposing of property of the United States. In United States v. Gratiot,[294] in which the validity of a lease of lead mines on government lands was put in issue, the contention was advanced that "disposal is not letting or leasing," and that Congress has no power "to give or authorize leases." The Court sustained the leases, saying "the disposal must be left to the discretion of Congress."[295] Nearly a century later this power to dispose of public property was relied upon to uphold the generation and sale of electricity by the Tennessee Valley Authority. The reasoning of the Court ran thus: the potential electrical energy made available by the construction of a dam in the exercise of its constitutional powers is property which the United States is entitled to reduce to possession; to that end it may install the equipment necessary to generate such energy. In order to widen the market and make a more advantageous disposition of the product, it may construct transmission lines and may enter into a contract with a private company for the interchange of electric energy.[296]

Public Lands: Federal and State Powers Over

No appropriation of public lands may be made for any purpose except by authority of Congress.[297] However, Congress was held to have acquiesced in the long-continued practice of withdrawing land from the public domain by Executive Orders.[298] In 1976 Congress enacted legislation that established procedures for withdrawals and that explicitly disclaimed continued acquiescence in any implicit executive withdrawal authority.[299] The comprehensive authority of Congress over public lands includes the power to prescribe the times, conditions, and mode of transfer thereof and to designate the persons to whom the transfer shall be made,[300] to declare the dignity and effect of titles emanating from the United States,[301] to determine the validity of grants which antedate the government's acquisition of the property,[302] to exempt lands acquired under the homestead laws from previously contracted debts,[303] to withdraw land from settlement and to prohibit grazing thereon,[304] to prevent unlawful occupation of public property and to declare what are nuisances, as affecting such property, and provide for their abatement,[305] and to prohibit the introduction of liquor on lands purchased and used for an Indian colony.[306] Congress may limit the disposition of the public domain to a manner consistent with its views of public policy. A restriction inserted in a grant of public lands to a municipality which prohibited the grantee from selling or leasing to a private corporation the right to sell or sublet water or electric energy supplied by the facilities constructed on such land was held valid.[307]

Unanimously upholding a federal law to protect wild-roaming horses and burros on federal lands, the Court restated the applicable principles governing Congress' power under this clause. It empowers Congress to act as both proprietor and legislature over the public domain; Congress has complete power to make those "needful rules" which in its discretion it determines are necessary. When Congress acts with respect to those lands covered by the clause, its legislation overrides conflicting state laws.[308] Absent action by Congress, however, States may in some instances exercise some jurisdiction over activities on federal lands.[309]

No State can tax public lands of the United States within its borders,[310] nor can state legislation interfere with the power of Congress under this clause or embarrass its exercise.[311] Thus, by virtue of a Treaty of 1868, according self-government to Navajos living on an Indian Reservation in Arizona, the tribal court, rather than the courts of that State, had jurisdiction over a suit for a debt owed by an Indian resident thereof to a non- Indian conducting a store on the Reservation under federal license.[312] The question whether title to land which has once been the property of the United States has passed from it must be resolved by the laws of the United States; after title has passed, "that property, like all other property in the state, is subject to state legislation, so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States."[313] In construing a conveyance by the United States of land within a State, the settled and reasonable rule of construction of the State affords a guide in determining what impliedly passes to the grantee as an incident to land expressly granted.[314] But a state statute enacted subsequently to a federal grant cannot operate to vest in the State rights which either remained in the United States or passed to its grantee.[315]

Territories: Powers of Congress Over

In the territories, Congress has the entire dominion and sovereignty, national and local, and has full legislative power over all subjects upon which a state legislature might act.[316] It may legislate directly with respect to the local affairs of a territory or it may transfer that function to a legislature elected by the citizens thereof,[317] which will then be invested with all legislative power except as limited by the Constitution of the United States and acts of Congress.[318] In 1886, Congress prohibited the enactment by territorial legislatures of local or special laws on enumerated subjects.[319] The constitutional guarantees of private rights are applicable in territories which have been made a part of the United States by congressional action[320] but not in unincorporated territories.[321] Congress may establish, or may authorize the territorial legislature to create, legislative courts whose jurisdiction is derived from statutes enacted pursuant to this section other than from article III.[322] Such courts may exercise admiralty jurisdiction despite the fact that such jurisdiction may be exercised in the States only by constitutional courts.[323]


[257] Id. The present provision was then adopted as a substitute. Id. at 455.

[258] Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 221(1845). The Continental Congress in responding in the Northwest Ordinance, on July 13, 1787, provided that when each of the designated States in the territorial area achieved a population of 60,000 free inhabitants it was to be admitted "on an equal footing with the original States, in all respects whatever[.]" An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio, Art. V, 5 JOURNALS OF CONGRESS 752-754 (1823 ed.), reprinted in C. Tansill ed., Documents Illustrative of the Formation of the Union of the American States, H. DOC. NO. 398, 69th Cong., 1st Sess. (1927), 47, 54.

[259] 1 Stat. 491 (1796). Prior to Tennessee's admission, Vermont and Kentucky were admitted with different but conceptually similar terminology. 1 Stat. 191 (1791); 1 Stat. 189 (1791).

[260] 2 Stat. 701, 703 (1812).

[261] Justice Harlan, speaking for the Court, in United States v. Texas, 143 U.S. 621, 634 (1892) (citing 9 Stat. 108).

[262] Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 15 1 (1914); Illinois Central 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).

[263] 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.) 588 (1845).

[264] 3 Stat. 489, 492 (1819).

[265] Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212 , 228-229 (1845) (emphasis supplied). And see id. at 222-223.

[266] Coyle v. Smith, 221 U.S. 559 (1911).

[267] Id. at 567.

[268] South Carolina v. Katzenbach, 383 U.S. 301 , 328 -329 (1966). There is a broader implication, however, in Baker v. Carr, 369 U.S. 186 , 226 n. 53 (1962).

[269] Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212 , 224 -225, 229-230 (1845); Coyle v. Smith, 221 U.S. 559 , 573 -574 (1911). See also Bolln v. Nebraska, 176 U.S. 83 , 89 (1900); Ward v. Race Horse, 163 U.S. 504 , 514 (1895); Escanaba Co. v. City of Chicago, 107 U.S. 678 , 688 (1882); Withers v. Buckley, 61 U.S. (20 How.) 84 , 92 (1857).

[270] 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 Indian tribes and intercourse with them); 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).

[271] United States v. Texas, 339 U.S. 707 , 716 (1950); Stearns v. Minnesota, 179 U.S. 223 , 245 (1900).

[272] 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).

[273] Van Brocklin v. Tennessee, 117 U.S. 151 , 167 (1886).

[274] Wilson v. Cook, 327 U.S. 474 (1946).

[275] Permoli v. First Municipality, 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).

[276] Draper v. United States, 164 U.S. 240 (1896), following United States v. McBratney, 104 U.S. 621 (1882).

[277] Dick v. United States, 208 U.S. 340 (1908); Ex parte Webb, 225 U.S. 663 (1912).

[278] United States v. Sandoval, 231 U.S. 28 (1913).

[279] Minnesota v. Mille Lacs Band of Chippewa Indians, 119 S. Ct. 1187, 1204- 05 (1999) (overruling Ward v. Race Horse, 163 U.S. 504 (1896)).

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.[280]

[280] Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 , 170 (1892).

[281] Baker v. Morton, 79 U.S. (12 Wall.) 150 , 153 (1871).

[282] Freeborn v. Smith, 69 U.S. (2 Wall.) 160 (1865).

[283] John v. Paullin, 231 U.S. 583 (1913).

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.[284]

[284] Hunt v. Palao, 45 U.S. (4 How.) 589 (1846). Cf. Benner v. Porter, 50 U.S. (9 How.) 235 , 246 (1850).

[285] 44 U.S. (3 How.) 21 2, 223 (1845). See also Martin v. Waddell, 41 U.S. (16 Pet.) 367 , 410 (1842).

[286] See 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 an Indian 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).

[287] United States v. California, 332 U.S. 19 , 38 (1947); United States v. Louisiana, 339 U.S. 699 (1950).

[288] 339 U.S. 70 7, 716 (1950). See United States v. Maine, 420 U.S. 515 (1975) (unanimously reaffirming the California, Louisiana, and Texas cases).

[289] Brown v. Grant, 116 U.S. 207 , 212 (1886).

[290] 67 Stat. 29, 43 U.S.C. §§ 1301-1315.

[291] Alabama v. Texas, 347 U.S. 272 , 274 -277, 281 (1954). Justice Black and Douglas dissented.

[292] Shively v. Bowlby, 152 U.S. 1 , 47 (1894). See also Joy v. St. Louis, 201 U. S. 332 (1906).

[293] 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 Indians does not necessarily preclude the application to Indians 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 the exaction of a license fee which is both regulatory and revenue producing. Tulee v. Washington, 315 U. S. 681 (1942).

[294] 39 U.S. (14 Pet.) 526 (1840).

[295] Id. at 533, 538.

[296] Ashwander v. TVA, 297 U.S. 288 , 335 -340 (1936). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938).

[297] United States v. Fitzgerald, 40 U.S. (15 Pet.) 407 , 421 (1841). See also California v. Deseret Water, Oil & Irrigation Co., 243 U.S. 415 (1917); Utah Power & Light Co. v. United States, 243 U.S. 389 (1917).

[298] Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Midwest Oil Co., 236 U.S. 459 , 469 (1915).

[299] Federal Land Policy and Management Act, Pub. L. 94-579, § 704(a); 90 Stat. 2792 (1976).

[300] Gibson v. Chouteau, 80 U.S. (13 Wall.) 92 , 99 (1872); see also Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858); Emblem v. Lincoln Land Co., 184 U. S. 660, 664 (1902).

[301] Bagnell v. Broderick, 38 U.S. (13 Pet.) 436 , 450 (1839). See also Field v. Seabury, 60 U.S. (19 How.) 323 , 332 (1857).

[302] Tameling v. United States Freehold & Immigration Co., 93 U.S. 644 , 663 (1877). See also Maxwell Land-Grant Case, 121 U.S. 325 , 366 (1887).

[303] Ruddy v. Rossi, 248 U.S. 104 (1918).

[304] Light v. United States, 220 U.S. 523 (1911). See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77 (1873).

[305] Camfield v. United States, 167 U.S. 518 , 525 (1897). See also Jourdan v. Barrett, 45 U.S. (4 How.) 169 (1846): United States v. Waddell, 112 U.S. 76 (1884).

[306] United States v. McGowan, 302 U.S. 535 (1938).

[307] United States v. City of San Francisco, 310 U.S. 16 (1940).

[308] Kleppe v. New Mexico, 426 U.S. 529 (1976).

[309] California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987).

[310] Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson v. Cook, 327 U.S. 474 (1946).

[311] Gibson v. Chouteau, 80 U.S. (13 Wall.) 92 , 99 (1872). See also Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858); Emblem v. Lincoln Land Co., 184 U. S. 660 , 664 (1902).

[312] Williams v. Lee, 358 U.S. 217 (1959).

[313] Wilcox v. McConnel, 38 U.S. (13 Pet.) 498 , 517 (1839).

[314] Oklahoma v. Texas, 258 U.S. 574 , 595 (1922).

[315] United States v. Oregon, 295 U.S. 1 , 28 (1935).

[316] Simms v. Simms, 175 U.S. 162 , 168 (1899). See also United States v. McMillan, 165 U.S. 504 , 510 (1897); El Paso & N.E. Ry. v. Gutierrez, 215 U. S. 87 (1909); First Nat'l Bank v. County of Yankton, 101 U.S. 129 , 133 (1880).

[317] Binns v. United States, 194 U.S. 486 , 491 (1904). See also Sere v. Pitot, 10 U.S. (6 Cr.) 332 , 336 (1810); Murphy v. Ramsey, 114 U.S. 15 , 44 (1885).

[318] Walker v. New Mexico & S.P.R.R., 165 U.S. 593 , 604 (1897); Simms v. Simms, 175 U.S. 162 , 163 (1899); Wagoner v. Evans, 170 U.S. 588 , 591 (1898).

[319] 24 Stat. 170 (1886).

[320] Downes v. Bidwell, 182 U.S. 244 , 271 (1901). See also Mormon Church v. United States, 136 U.S. 1 , 14 (1890); ICC v. United States ex rel. Humboldt Steamship Co., 224 U.S. 474 (1912).

[321] Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138 (1904); Balzac v. Porto Rico, 258 U.S. 298 (1922) (collectively, the Insular Cases). The guarantees of fundamental rights apply to persons in Puerto Rico, id. at 312-313, but what these are and how they are to be determined, in light of Balzac's holding that the right to a civil jury trial was not protected. The vitality of the Insular Cases has been questioned by some Justices, Reid v. Covert, 354 U.S. 1 , 14 (1957) (plurality opinion); Torres v. Puerto Rico, 442 U.S. 465 , 474 , 475 (1979) (concurring opinion of four Justices), but there is no doubt the Court adheres to it, United States v. Verdugo-Urquidez, 494 U.S. 259 , 268 (1990); Harris v. Rosario, 446 U.S. 651 (1980), and the developing caselaw using the cases as the proper analysis. Applying stateside rights in Puerto Rico are Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) (procedural due process); Examining Board v. Flores de Otero, 426 U.S. 572 (1976) (equal protection principles); Torres v. Puerto Rico, 442 U.S. 465 (1979) (search and seizure); Harris v. Rosario, supra (same); Rodriguez v. Popular Democratic Party, 457 U.S. 1 , 7 -8 (1982) (equality of voting rights); Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328 , 331 n. 1 (1986) (First Amendment speech). See also Califano v. Torres, 435 U.S. 1 , 4 n. 6 (1978) (right to travel assumed). Puerto Rico is, of course, not the only territory that is the subject of the doctrine of the Insular Cases. E.g., Ocampo v. United States, 234 U.S. 91 (1914) (Philippines and Sixth Amendment jury trial); Hawaii v. Mankichi, 190 U.S. 197 (1903) (grand jury indictment and trial by jury).

[322] American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511 , 546 (1828). See also Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434 , 447 (1872); Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648 , 655 (1874); Reynolds v. United States, 98 U. S. 145 , 154 (1879); The "City of Panama", 101 U.S. 453 , 460 (1880); McAllister v. United States, 141 U.S. 174 , 180 (1891); United States v. McMillan, 165 U.S. 504 , 510 (1897); Romeu v. Todd, 206 U.S. 358 , 368 (1907).

[323] American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511 , 545 (1828).

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