The Judicial Power—Land Grant Jurisdiction Clause

The judicial Power shall extend . . . to Controversies . . . between Citizens of the same State claiming Lands under Grants of different States . . . .

—Judge Lawrence VanDyke & Ethan Foster

Introduction

The Land Grant Jurisdiction Clause vests the federal courts with jurisdiction to hear cases when two states purport to grant identical property to different citizens. This provision was an uncontroversial answer to protracted colonial disputes that had persisted at the Constitutional Convention. Its inclusion in the Constitution helped advocates to champion ratification. Although it has not been a serious subject of litigation since the 1950s, it serves as a reminder of the sacrifices made on the way to a more perfect union. Today, the provision is largely vestigial.

Conflicting Claims in the Colonies

Before forming a more perfect union, the North American colonies were not all fully bounded territories. The Atlantic Ocean provided a natural eastward limit to expansion, and neighboring colonies constrained most northern and southern expansion, but several colonies lacked firmly defined westward borders in their charters. Under these circumstances, colonial governments with royal authorization to do so encouraged widespread land speculation by granting land claims. In 1754, for example, Virginia Lieutenant Governor Robert Dinwiddie issued a proclamation granting land in the Kanawha Valley to veterans of the French and Indian Wars in partial repayment for their service.¹ Some colonies made expansive claims to land outside their borders; others made few such claims.

A natural consequence was that disputes could emerge between states over competing grants to the same land. Not all Colonial charters specified how to resolve these sorts of land claims beyond their boundaries. For example, the charters of Massachusetts, Connecticut, Virginia, and Carolina (which later would subdivide into North Carolina and South Carolina) broadly defined their borders. These charters included provisions that claimed land extending from the Atlantic to the Pacific.² At the time, however, it was not known how much land separated the two oceans. Several states, including New York, Virginia, Massachusetts, and Connecticut, laid claim to the same pieces of land in the Northwest Territory (largely land northwest of the Ohio River).³

By contrast, Maryland, Rhode Island, New Jersey, and Delaware had fixed boundaries and were wary of the larger colonies’ expansive claims.⁴ These claims were fueled by the 1763 Treaty of Paris, which confirmed and increased England’s sovereignty over western land as far as the Mississippi River. The ensuing efforts of the English Crown to recover financially from the French and Indian War led to increased taxes, which prompted a war for independence against the same authority that could have resolved the competing claims of the colonies. In other words, the very events that incentivized colonial westward expansion also set off the American Revolution. As a result, the colonies were forced to resolve competing land claims among themselves in an altogether new forum of their own making.

The Continental Congress

Tensions between colonies with and without expansive land claims emerged at the very start of the Continental Congress. In July 1776, John Dickinson of Pennsylvania presented a draft of the Articles of Confederation for consideration and debate. Articles XIV, XV, and XVIII seemed to allow some colonies to expand westward indefinitely based on their charters.⁵ Samuel Chase of Maryland, a future Supreme Court Justice, resisted this language. He argued that “[n]o Colony has a Right to go to the South Sea [Pacific Ocean]; they never had; they can’t have. It would not be safe to the rest. It would be destructive to her sisters, and to herself.”⁶ James Wilson of Pennsylvania, also a future Supreme Court Justice, concurred. Such claims, he said, were “extravagant” because the charter grants were based on the assumption that “the South Sea [was] within one hundred miles of the Atlantic Ocean,” and it “was not conceived that they extended three thousand miles.” Accordingly, Wilson warned that Pennsylvania “will not confederate unless those claims are cut off.”⁷

Chase later bristled to Richard Henry Lee of Virginia that conflicting “claims to the South-Sea” needed to be settled and that “[w]e do not all see the importance, nay, the necessity, of a Confederacy” if that question were to remain unresolved.⁸ In August 1776, an amendment was proposed to “[l]imit[] the bounds of States, which by charter, &c. extend to the South Sea.” But representatives of Virginia, which had expansive claims, aggressively opposed the proposal.⁹

In October 1777, Maryland proposed that the Continental Congress “shall have the sole and exclusive right and power to ascertain and fix the western boundary of such States as claim to the Mississippi or South Sea, and lay out the land beyond the boundary, so ascertained, into separate and independent States, from time to time, as the numbers and circumstances of the people may require.” That proposal was roundly defeated with Maryland alone voting in favor.¹⁰

Rhode Island, New Jersey, and Delaware were less concerned with the jurisdictional sweep of other states and more interested in seeing that revenues from sales of western land be distributed or consolidated to defray war debts. Their proposed amendments to that end were also defeated.¹¹

The Articles of Confederation

On November 15, 1777, the Second Continental Congress adopted the Articles of Confederation, which depended on unanimous state ratification for their validity.¹² Article IX allowed states to petition Congress to resolve “[a]ll controversies concerning the private right of soil claims under different grants of two or more states.”¹³ The process used to deal with those petitions would be the same as the process used to “decid[e] disputes respecting territorial jurisdiction between different states.” Such disputes over charter grants would be resolved by “commissioners or judges” selected by the states or by Congress, and during this process, states could not “be deprived of territory for the benefit of the United States.”¹⁴

On September 19, 1778, the Committee on Finance recommended that states “having large uncultivated Territory, beyond what is in their Power to govern, be called on to cede the same to the United States.”¹⁵ By May 1779, Rhode Island, New Jersey, and Delaware ratified the Articles of Confederation,¹⁶ but Maryland refused to ratify until 1781 because of conflicting land claims.¹⁷ New York offered to cede her western lands in 1780, and Virginia began to offer cessions of its own in January 1781. In February 1781, Maryland ratified the Articles of Confederation.¹⁸ (See Essay No. 146.)

States with larger claims continued to cede lands to the central government.¹⁹ Such cessions reveal that the union’s stability was built on a hidden foundation of voluntary sacrifices by several states. As the national territory expanded, states could have competed with each other for that land. Instead, the states gave the territory to the central government, which in turn could admit new states. In 1783, Virginia ceded land claims northwest of the Ohio River to the Confederation Congress.²⁰ In July 1787, the Northwest Ordinance was adopted by the Confederation Congress, erecting a temporary government for that territory as well as establishing a framework for admitting new states.²¹

The Constitutional Convention

In July 1787, the Committee of Detail drafted language that would have authorized the Senate to resolve “[c]ontroversies concerning Lands claimed under different Grants of two or more States.”²² But on August 24, the provision containing that language was defeated as more properly belonging within the purview of the national judiciary.²³ On August 27, Roger Sherman of Connecticut inserted what is now the Land Grant Jurisdiction Clause—“between Citizens of the same State claiming lands under grants of different States”—without reported debate.²⁴ That text received no further changes. James Madison of Virginia observed that the Land Grant Jurisdiction Clause was relocated within the jurisdiction of the federal judiciary and without controversy.²⁵

Given the history of conflicts between states, it is little surprise that the Land Grant Jurisdiction Clause found its home in Article III. A basic purpose envisioned for the federal judiciary—one sustained throughout the Constitutional Convention—was that jurisdiction would extend to “questions which involve the national peace or harmony.”²⁶ With cessions still anticipated and boundary disputes not fully resolved at the time of the Convention, a federal forum to address future conflicts was needed.²⁷ Delegates from Delaware and Maryland, for example, intimated that questions about western lands were still on the minds of their constituents.²⁸

The Ratification Debates

Federalists in Maryland promoted the Land Grants Clause as a welcome concession. A Maryland broadside by Aratus recited the clause and commented that “[i]t ought not to be overlooked in this frame of government, and it appears to me to be a most striking character in its composition, that the grand object is to preserve unanimity amongst the several states and the citizens thereof, by removing every probable cause of disagreement.”²⁹

Alexander Hamilton defended the federal judiciary in Federalist No. 80 as an impartial forum for resolving disputes where state courts might not be trusted. He had a salient example in mind: “Claims to land under grants of different states, founded upon adverse pretensions of boundary, are of this description.” Hamilton observed that “[t]he courts of neither of the granting states could be expected to be unbiassed.” Indeed, he wrote, “[t]he laws may have even prejudged the question, and tied the courts down to decisions in favour of the grants of the state to which they belonged.” As a general matter, land disputes between citizens of different states could be heard in federal court under the Citizen-State Diversity Clause, but the Land Grant Jurisdiction Clause provides jurisdiction only for disputes between citizens of the same state.³⁰ In such cases, the Land Grant Jurisdiction Clause was the only avenue to a neutral federal forum.

Another strategic advantage of the Land Grant Jurisdiction Clause was that its narrow specificity was cited to mollify the Anti-Federalists’ fear that Article III courts would absorb and destroy the state judiciaries.³¹

Judicial Precedent

Congress promptly enacted legislation implementing the Land Grant Jurisdiction Clause in the Judiciary Act of 1789.³² Relevant jurisprudence is sparse and largely concerns jurisdictional questions. In 1809, the U.S. Supreme Court refused to exercise jurisdiction under the Land Grants Clause if one of the parties was a corporation.³³ At the time, the Court had not yet settled that corporations were citizens. But it rejected that framework in 1844.³⁴

In 1815, the Court exercised jurisdiction over a dispute between citizens of Vermont asserting competing land grants. When the dispute arose, Vermont was part of New Hampshire. Vermont issued one land grant, and New Hampshire issued the other.³⁵ Following the Judiciary Act of 1887, the Court made clear that a federal circuit court could take up a case under the Land Grants Clause without regard to the amount in controversy.³⁶

In modern times, the land grant provision is codified at 28 U.S.C. § 1354. Minor border disputes have arisen involving citizens of the same state. In Schroeder v. Freeland, a private dispute erupted over ownership of land between Iowa (which lost land) and Nebraska (which gained land) as a result of changes in the Missouri River’s boundaries.³⁷ The Eighth Circuit reasoned that because the property dispute did not arise from state or charter grants, federal jurisdiction was unavailable.³⁸ Nor is that holding surprising: It is now vanishingly rare for two states to purport to grant identical property to different citizens within the same state.

Open Questions

• If a state were to subdivide in the future, the Land Grant Jurisdiction Clause could become useful for a narrow transitional period. But the fact that it is not commonly invoked is, perhaps counterintuitively, its crowning achievement: The Land Grant Jurisdiction Clause helped to pave the way for our now firmly established Union.

1. 7 The Statutes at Large, Being a Collection of All the Laws of Virginia 661–62 (William Waller Hening ed., 1820). ↩︎
2. Charter of Massachusetts Bay (1691); Charter of Carolina (1665); Charter of Connecticut (1662); Third Charter of Virginia (1611). ↩︎
3. Herbert Adams, Maryland’s Influence upon Land Cessions to the United States, in Johns Hopkins University Studies in Political Science 9–22 (3d Ser., Herbert Adams, ed., 1885). ↩︎
4. Payson Jackson Treat, The National Land System 1785–1820, 4–5 (1910). ↩︎
5. 5 J. Cont. Cong. 549–51 (July 12, 1776). ↩︎
6. 6 J. Cont. Cong. 1076–77 (July 25, 1776). ↩︎
7. Id. at 1077. ↩︎
8. 1 American Archives 672 (5th Ser., Peter Force ed., 1839). ↩︎
9. 6 J. Cont. Cong. 1082–83 (Aug. 2, 1776). ↩︎
10. 9 J. Cont. Cong. 806–07 (Oct. 15, 1777). ↩︎
11. Adams, supra at 23–24; Treat, supra at 5. ↩︎
12. 9 J. Cont. Cong. 906–25 (Nov. 15, 1777). ↩︎
13. Articles of Confederation, art. IX, § 3. ↩︎
14. Id., art. IX, § 2. ↩︎
15. 12 J. Cont. Cong. 931–32 (Sept. 19, 1778). ↩︎
16. Adams, supra at 24–25. ↩︎
17. Id. at 25. ↩︎
18. Treat, supra at 5. ↩︎
19. Id. at 6–7. ↩︎
20. 11 Statutes at Large supra at 567–70. ↩︎
21. An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio (1787). ↩︎
22. 2 Farrand’s 162–63, 171, 184–85. ↩︎
23. Id. at 400–01. ↩︎
24. Id. at 425–26. ↩︎
25. Id. at 431–32. ↩︎
26. 1 Farrand’s 22, 223–24, 231–32, 237–38. ↩︎
27. Id. at 22. ↩︎
28. Id. at 405, 463, 471, 441; 2 Farrand’s 455, 461–62; 3 Farrand’s 575 n.6. ↩︎
29. 11 DHRC 30, 40. ↩︎
30. Stevenson v. Fain, 195 U.S. 165, 168–70 (1904). ↩︎
31. 3 DHRC 490, 527. ↩︎
32. 1 Stat. 73, 80. ↩︎
33. Bank of U.S. v. Deveaux, 9 U.S. 61, 85–87 (1809). ↩︎
34. Louisville, C. & C.R. Co. v. Letson, 43 U.S. 497, 555–56 (1844). ↩︎
35. Town of Pawlet v. Clark, 13 U.S. (9 Cranch) 292, 319–22 (1815); Colson v. Lewis, 15 U.S. 377, 378–79 (1817). ↩︎
36. United States v. Sayward, 160 U.S. 493, 497–98 (1895). ↩︎
37. 188 F.2d 517, 518–19 (8th Cir. 1951). ↩︎
38. Id. at 519–20. ↩︎