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Acquisition of Oregon by Inherent Sovereign Powers:  A Reply to Andrew Hyman
John Vlahoplus

Andrew Hyman’s recent post mistakes the timing and manner of the U.S. acquisition of the Oregon territory.  As the State Department explains, the United States claimed the territory “based on the explorations of Lewis and Clark” (who reached the mouth of the Columbia River in 1805) “and on the establishment of trading posts set up by John Jacob Astor’s Pacific Fur Company” (which began in 1811).  Those are grounds from the inherent powers of a sovereign.

The 1818 convention with Great Britain did not affect the American title.  The convention expressly provided “that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country.”  The United States continued to claim title to the territory, and a federal District Court later ruled that the Fourteenth Amendment’s citizenship clause (“All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . .”) was merely declaratory of the common law rule that already applied in the territory at the 1824 birth of the plaintiff in the case.  All of the U.S. senators who discussed the case on the floor of the Senate, including Lyman Trumbull, insisted that the United States owned the territory throughout the period that the 1818 convention gave Britons a right of access.  From the American perspective, the United States did not acquire the land south of the forty ninth parallel under the 1846 convention with Great Britain but rather ceded the land north of it.  The United States gave up on “Fifty-four forty or fight.”

The Oregon Country was unincorporated for decades under the later invented standards of the Insular Cases.  Congress refused to exercise its jurisdiction in the territory.  It discouraged Americans from emigrating there by refusing to promise statehood.  Many members of Congress expected the territory to become its own republic, a U.S. military post or naval base, a home for non-white North Americans, or to be used for some other purposes besides statehood.  As Senator Dickerson stated in 1825, “is this territory of Oregon ever to become a state, a member of this Union? Never. The Union is already too extensive—and we must make three or four new states from the territories already formed.”  Senator Dickerson went further in defending the refusal to extend federal law to the territory.  His words have special poignancy for residents of our remaining territories:  “As yet we have extended our laws to no territories, but such as were or are to become states of the Union. We have not adopted a system of colonization, and it is to be hoped we never shall. Oregon can never be one of the United States. If we extend our laws to it, we must consider it as a colony.”

For a more complete discussion of the territory’s acquisition and birthright citizenship there, including the District Court judge’s unique application of the common law rule to children born there to British fathers, see here.

MICHAEL RAMSEY adds: If I'm understanding this right (and I'm no expert on Oregon), there's actually not an issue of Congress exceeding its enumerated powers because Congress didn't act with respect to Oregon until 1848, at which point it was both implementing the 1846 treaty (as I would put it, see here) and (as Andrew Hyman says) regulating incidental to its power to admit new states. Rather, the issue is whether the President exceeded his constitutional powers (or acted pursuant to inherent sovereign power) in claiming Oregon for the United States prior to 1818.  My view is that the President in asserting a claim to territory under international law exercises the executive power over foreign affairs vested in the President by Article II, Section I (a delegated power, not an inherent sovereign power).  But the executive power does not give the President lawmaking power with respect to territory such as Oregon, and my understanding is that the U.S. properly didn't exercise lawmaking power in Oregon until Congress passed the 1848 Act.

ANDREW HYMAN adds:  We haven’t mentioned the Adams-Onis Treaty (1819) which specified that the King of Spain “cedes to the said United States all his rights, claims, and pretensions to any territories east and north of the said line” which included the Oregon Country in addition to Florida.  Conversely, President Monroe gave this pledge in Article VI of the treaty:

The inhabitants of the territories which His Catholic Majesty cedes to the United States, by this treaty, shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States.

That looks like a pledge of future statehood, notwithstanding the great distance between the ceded territories and the nation’s capital, although one might argue that this pledge only applied to Florida.

In any event, there was no federal legislation over the Oregon Country before Congress manifested its goal of statehood in 1848.  Legislators like Senator Mahlon Dickerson, who in 1825 opposed future statehood for Oregon, successfully opposed federal legislation as to Oregon because any such legislation would treat Oregon like a permanent colony and thus would not be needful.  Taking that position literally would preclude even naturalization statutes applicable to the Oregon Country.