The Oregon Acquisition: Inherent Sovereign Powers and the Commerce Clause [Updated with Comments]John Vlahoplus

The history of the Oregon acquisition demonstrates the broad early interpretations of the federal government’s inherent sovereign powers and, incidentally, of the commerce clause.  From the early nineteenth century, America claimed ownership of the territory by the inherent power of discovery without relying on any statutory claim or treaty grant.

On May 11, 1792, the American Robert Gray sailed into the fabled River of the West, which had long eluded European explorers, and named it the Columbia after his ship (Charles Carey, A General History of Oregon Prior to 1861, at 93–94).  Gray’s voyage was not governmental; it was a purely private commercial venture (Carey at 90).  In early 1803, before the Louisiana Purchase, President Jefferson proposed an expedition along the Missouri River across French territory and onward to the Pacific in part to develop American competition to the British fur trade and to divert the area’s trade inward to the United States (Carey at 111–12).  Jefferson justified the expedition under the congressional commerce power.  “The interests of commerce place the principal object within the constitutional powers and care of Congress, and that it should incidentally advance the geographical knowledge of our own continent, can not but be an additional gratification.”  By an Act of February 28, 1803, Congress appropriated $2,500 for the expedition “for the purpose of extending the external commerce of the United States.”  Even in early 1803 the commerce clause was interpreted to authorize congressional action to expand commerce, not merely to tell people “[i]f you want to trade or exchange with others, here is how you must go about it.” (see Randy Barnett, The Original Meaning of the Commerce Clause, at 139).

Lewis and Clark reached the mouth of the Columbia River in 1805.  Their expedition paved the way for John Jacob Astor’s Pacific Fur Company to set up private commercial operations in the area beginning in 1811.  In 1813 Astor’s partners learned that war had broken out and that Britain had dispatched forces to assert its sovereignty over the area and oust the Americans.  Astor appealed for U.S. military protection to no avail.  Under duress from the approach of British warships, Astor’s partners sold the prized Fort Astor to a Montreal-based rival at a fraction of its value.  A British warship arrived shortly thereafter, and its captain asserted British sovereignty.  The British flag replaced the American flag over the renamed Fort George. (Carey at 210–15).

In preparing for the negotiations to end the war, President Madison recalled Astor’s plea for help and insisted on the fort’s restoration.  On March 22, 1814, Secretary of State Monroe instructed the American negotiators in terms that made clear the American claim to the Oregon territory and utter rejection of any British rights to it:

Should a treaty be concluded with Great Britain, and a reciprocal restitution of territory be agreed on, you will have it in recollection that the United States had in their possession, at the commencement of the war, a post at the mouth of the river Columbia, which commanded the river, which ought to be comprised in the stipulation, should the possession have been wrested from us during the war.  On no pretext can the British Government set up a claim to territory south of the northern boundary of the United States.  It is not believed that they have any claim whatever to territory on the Pacific ocean.  You will, however, be careful, should a definition of boundary be attempted, not to countenance, in any manner, or in any quarter, a pretension in the British government to territory south of that line.  (here at 731).

The resulting Treaty of Ghent, ratified in 1815, provided that “[a]ll territory, places, and possessions whatsoever, taken by either party from the other, during the war . . . shall be restored without delay . . . .”  In 1817 the United States sent a warship “to the Columbia river with instructions ‘to assert the claim of the United States to the sovereignty of the adjacent country, and especially to reoccupy Astoria, or Fort George.’”  The ship arrived in August 1818, and its captain raised the American flag over the fort on August 19.  The Americans interpreted this as a restitution of sovereign territory that it held before the war.  The British, however, interpreted it as merely returning the property of the fort. (Carey at 216–17).  Britain continued to assert its territorial claims, and shortly afterward the two nations signed the 1818 treaty that allowed joint access to the territory without prejudicing either’s claims in order to avoid another war.

I have not found a single period claim that the United States acquired the Oregon territory under a statutory claim or a treaty grant—and with good reason.  There was no such statute, and neither party believed that the Treaty of Ghent granted sovereignty over Fort George to the United States.  The British denied that the handover involved sovereignty at all, and the United States insisted that it merely restored sovereign territory that the nation owned before the war. 

One can argue which party was right under international law, just as Britain and the United States did until the treaty of 1846 settled the dispute.  But the United States’ public position could only be justified by the federal government’s inherent sovereign powers.  All of the claims described above occurred before Congress extended federal law to the territory and before Spain and Russia ceded their claims to the United States.  The U.S. insisted that it owned the territory before 1814, not that it acquired the territory later nor that some later action retroactively created pre-1814 ownership.

One question remains.  Could the territory have belonged to the United States before 1846 but not been within the United States then?  The case of William C. McKay bears on the answer.  For the following discussion of the case and the congressional response, see here at 415–20. 

The British Hudson’s Bay Company and its predecessor continued to occupy and operate Fort George after the handover in 1818.  McKay was born there in 1824 to a British father who worked for the Hudson’s Bay Company.  Thus McKay was born in the very fort that the United States insisted was its sovereign territory before the War of 1812 and had been restored to it afterward.

The Oregon federal District Court adjudicated a challenge to McKay’s citizenship in 1871.  The court found 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 applied in the territory during the period of joint access from 1818 to 1846.  The court denied McKay citizenship, however, because he was born to a British father in a British-occupied portion of the territory.

Oregon Senator Corbett introduced a naturalization bill in Congress to reverse the result in the case.  Before he could explain the District Court’s reasoning, other Senators ridiculed the decision as absurd and the bill as unnecessary because the United States had title to the territory during the period and persons born there were subject to U.S. jurisdiction.  Senator Thurman objected to the proposal because he assumed that the District Court judge thought that the United States did not own the territory:

As long as it depends upon the decision of some judge who does not understand what he is about, it is a trifling matter; but for the Congress of the United States to say that we did not own that territory between the Columbia river and the forty-ninth parallel, and that we have to naturalize the people who were born upon it and were subject to our jurisdiction, for the Congress of the United States to say that, is a pretty serious matter.

Senator Casserly objected for the same reason:

I do not wish, unless it is unavoidable, to object to a bill which is desired by the Senator from Oregon, and which respects that State; but the question involved here is whether or not the United States for a series of years set up a false and unfounded title to territory, and whether it shall now be declared by acts of Congress to have been false and unfounded. I would rather have it laid over until some time when the question can be fully discussed.

Oregon Senator Kelly then explained the court’s common law ground for the decision: 

[I]n order to be a citizen of the United States he must have been not only born within the United States, but born within the allegiance of the United States. The child of a British minister born in this city [the District of Columbia] . . . is born in the United States, but he is born without the allegiance of the United States; and so it was there in Oregon.

Senator Trumbull did not think the bill was necessary, but he supported it purely as a favor to Corbett, eliciting laughter from the rest of the Senate.  Congress did not act through a naturalization bill, however.  Instead, it inserted a single sentence in an appropriations bill recognizing that McKay and those similarly situated were born in the United States.  It provided simply “[t]hat all persons born in the district of country formerly known as the Territory of Oregon, and subject to the jurisdiction of the United States at this time, are citizens of the United States in the same manner as if born elsewhere in the United States.”  Congress did not naturalize them like persons born outside of the United States.  It treated them the same as if they had been born elsewhere in the United States rather than in a British-occupied portion of the United States.  At least for purposes of natural born citizenship, the Oregon territory was within the United States even when Britons had equal rights of access and the territory was not destined for statehood.

COMMENT FROM ANDREW HYMAN: This raises the question whether someone born in what later became the State of Oregon (in 1859) ever had U.S. citizenship, if she happened to be dead, or domiciled outside the United States, on 18 May 1872 when the quoted federal statute referred to “this time.”  The answer to this question could be “yes” because of that statute, or because of the Fourteenth Amendment, or because of Article VI of the Adams-Onis Treaty, or because of the old English common law, or some combination of these things.  But maybe the answer is “no.”  (Or maybe it depends whether she was expatriated, or subject to any extradition treaty, as of 1872.)  It’s quite a riddle.

MICHAEL RAMSEY ADDS:  I think the judge in the McKay case had it right.  McKay wasn't "subject to the jurisdiction" of the United States at the time of his birth because, although the U.S. executive claimed Oregon for the United States under international law, Congress had not extended U.S. jurisdiction to Oregon (and didn't do so until 1848).  Moreover, under the rule of Fleming v. Page, Oregon was not "in" the United States in 1824 because no legislative act (treaty or statute) had extended U.S. territory to include Oregon (see my discussion here as to the meaning of "in the United States").  For what it's worth, that accords with basic grade-school U.S. history, which teaches that the U.S. acquired Oregon by treaty in 1846.  Children of U.S. citizens born in Oregon prior to 1846 were U.S. citizens by the applicable naturalization act (providing that children of U.S. citizens born outside the U.S. were citizens); but McKay was not the child of U.S. citizens.  None of this is inconsistent with John Vlahoplus' account of how the U.S. executive claimed Oregon for the U.S. under international law prior to 1846.