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12/6/2019
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Texas’ Sovereignty & Borders
Who gave sovereignty to the Sovereign?
Scott F. Cline
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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