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Texas’ Sovereignty & Borders

Who gave sovereignty to the Sovereign?

Scott F. Cline

scline@thorntonfirm.com

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?

• How did the sovereign get title?

• Does title trace back to Mexico? Texas?

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How Did This Happen?

How Did This Happen?

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How Did This Happen?

How Does a Sovereign Acquire Title

• Right of Conquest

• How else?

• Inherit

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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”

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

Inter Caetera

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• Can proclamations in 500+ year-old Papal Bulls

remain in effect today?

• 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

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)

• Issue – is that a taking under the 5th

Amendment?

• Tee-Hit-Tons sought compensation for

taking by US of timber cut on tribal lands

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

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.”

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

Who Discovered Texas

• First known document in TX history

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Spanish Actions

• Discovered TX, enough?

• Possession? Control?

• What else is needed?

• Extent of the grant?

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

Spanish Actions

• After discovery of la Salle’s encampment,

Spain established missions in east TX

• Spain learned of the incursion in 1686 when

a French deserter was captured in Santa

Domingo

• 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

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

Spanish Land Ownership

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Texas Borders in Flux

• 1763 – LA transferred back to Spain

• 1800 – Napoleon reclaims ownership of LA

• 1803 – Louisiana Purchase

• 1682 – la Salle claims LA for France

Louisiana Purchase

• Purchase occurred in 1803

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• Boundary between Spanish province of

Texas and US in dispute

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

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

• Compromise of 1850 – TX border with NM

• Mexican-American War/Treaty of

Guadalupe Hidalgo – Mexican Cession

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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

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

Melish Map 1818

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Adams-Onis Treaty Litigation

• 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

• US v. Texas

Greer County, Texas

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Greer County, Texas

• From 1896 - 2017, numerous disputes over Red

River determined by SCOTUS

Red River Boundary Disputes

• TX boundary extends only to south cut bank of

river as it existed in 1819

• No royalties to TX for riverbed oil and gas

• What did treaty negotiators believe the boundary to

be when treaty presented for ratification?

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• 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

Red River Boundary Disputes

Red River Boundary Disputes

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Rio Grande Border Disputes

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

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

Mexican-American War

• Treaty of Guadalupe Hidalgo signed Feb. 2, 1848 –

Mexican Cession

• Nueces Strip remained contested area until the end

of Mexican-American War

• Rio Grande confirmed as southern boundary for TX

and US

• After Thornton Affair, Polk declares Mexico

“…shed American blood on American soil”

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Treaty of Guadalupe Hidalgo

Compromise of 1850

• Western panhandle of OK created to conform TX’s

northernmost border with Missouri Compromise

• TX relinquished claims to east bank of Rio Grande

north of El Paso

• US pays $10M for TX’s debt; TX retains public

land

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Compromise of 1850

Compromise of 1850

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Compromise of 1850

Compromise of 1850

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Compromise of 1850

Compromise of 1850

• Which president signed the bill giving TX

its present borders?

• Millard Fillmore

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Scott F. Cline

scline@thorntonfirm.com

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