Seaweed and Spoils: the Global Battle to Become Admiral of the Ocean Sea

Seaweed and Spoils: The Global Battle to Become ‘Admiral of the OceanSea’

By

Brad Reid

At the time of Christopher Columbus (1451-1506), Spain called the Atlantic Ocean the “OceanSea.” One of several honors that the Spanish monarchy promised Columbus was the title: “Admiral of the OceanSea.” This article will review several aspects of the historic struggle for dominion over the oceans, as well as the need to balance environmentalism, “Seaweed,” and “spoils,” the economic benefits of this final frontier.

In 1823, the U.S. Supreme Court, in an opinion authored by Chief Justice Marshall, stated that the “Doctrine of Discovery” was law in the United States.[1] The concept of discovery essentially holds that exclusive land ownership, against both the American Indians and other European powers, was acquired by the possession of North American lands by U.S. citizens. Such a rule may well be asserted in future international conflicts over ocean sovereignty. Spain, France, and Portugal historically engaged in symbolic acts of possession by planting a flag and reciting an ownership claim. In August 2007, Russia undertook the same action while planting a flag in the seabed near the North Pole.[2] Further complicating this potential clash is the fact that the United States is not a party to the United Nations Convention on the Law of the Sea, the most ambitious international attempt to regulate ocean economic development.[3]

Contemporary United States federal-state relations regarding the ocean are best illuminated by the “Seaweed Rebellion,” a modern conflict concerning offshore drilling that dates to the “Tidelands Controversy.” In significant litigation, a controversial decision asserted that Texas lost any special offshore jurisdiction when it was admitted to the U.S. on an “equal footing” with the other states.[4] While overturned by the Submerged Lands Act of 1953, legislation upheld by the U.S. Supreme Court,[5] the inherent sovereignty issues argued in 1949 are particularly relevant today under both U.S. domestic law as well as international law. The “Seaweed Rebellion” debates both environmental and economic development concerned within the context of federal-state relations.

Both the North Pole and Antarctica likely contain substantial petroleum reserves, assuming that the developing underwater and deep drilling technologies make drilling economically feasible. The original Antarctic Treaty of 1959 does not address mineral development.[6] Ultimately territorial clashes in Antarctica and at the North Pole will occur. Lofty language in the Preamble of the United Nations Convention of the Law of the Sea states that the oceans are “the common heritage of mankind.” Will this aspiration be attainable or will there be imperial wars of conquest based upon nations symbolically seeking the title “Admiral of the OceanSea”?

Johnson v. M’Intosh

Justice Marshal wrote that in the relations between the discoverer and the natives “the rights of the original inhabitants were, in no instance entirely disregarded; but were necessarily to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion. Their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle. That discovery gave exclusive title to those who made it.”[7] Furthermore, stated Justice Marshall, “the history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.”[8]

Marshall briefly reviewed Spanish, French, English, and Dutch history and concluded that “not one of the powers of Europe gave its full assent to this principle more unequivocally than England.”[9] This leads Marshall to the questions. “Have the American states rejected or adopted this principle?”[10]The treaty ending the American Revolution transferred all English rights to the land to the states.

“The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other, the distinction between them is gradually lost, and they make one people. Where this incorporation is policy it requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connection, and united by force to strangers.”[11]

“…the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.”[12]

“What was the inevitable consequence of this state of things? The Europeans were under necessity of either abandoning the country and relinquishing their pompous claims to it, or of enforcing these claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred.”[13]

“The law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.

However extravagant the presentation of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instances, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of Justice.[14]

“This opinion conforms precisely to the principle which has been supported to be recognized by all European governments, from the first settlement of America. The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right is not more incompatible with a seisin in fee, than a lease for years, and might as effectually bar an ejectment.”[15]

“If an individual might extinguish the Indian title for his own benefit, or, in other words, might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock and hold it in severalty, still it is a part of their territory, and is held under them, by a title dependent on their laws. The grant derives its efficacy from their will; and, if they choose to resume it, and make a different disposition of the land, the Courts of the United States cannot interpose for the protection of the title. The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchases; holds their title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding.”[16]

“It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connection with, and have no allegiance to, any government whatsoever, the country becomes the property of the discoverers, so far as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parceled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it.”

“If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nations, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law.”

“According to the theory of the British constitution, all vacant lands are vested in the crown, as representing the nation; and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has already been shown, that this principle was as fully recognized in America as in the island of Great Britain.”[17]

“It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right….The very grant of a charter is an assertion of the title of the crown and its words convey the same idea. The country granted, is said to be “our island called Rhode-Island;” and the charter contains an actual grant of the soil, as well as of the powers of government.”[18]

“This charter, and this letter, certainly sanction a previous unauthorized purchase from Indians, under the circumstances attending that particular purchase, but are far from supporting the general proposition that a title acquired from the Indians would be valid against a title acquired from the crown or without the confirmation of the crown.”

“The acts of the several colonial assemblies, prohibiting purchases from the Indians, have also been relied on as proving, that, independent of such prohibitions, Indian deeds would be valid. But we think this fact, at most, equivocal. While the existence of such purchases would justify their prohibition, even by the colonies which considered Indian deeds as previously invalid, the fact that such acts have been generally passed, is strong evidence of the general opinion, that such purchases are opposed by the soundest principles of wisdom and national policy.”[19]

This significant U.S. Supreme Court decision involved a claim to land purchased from the Piankeshaw Indians as opposed by a claim to the same land from a grant by the United States. The Court upheld the U.S. land grant. Of special significance for this article is the announced Doctrine of Discovery. The doctrine prevented conflicts between imperial European powers and, at an even more fundamental level, reflects a progressive view of history in which European civilization is perceived as superior to that of hunter-gatherer societies. The Doctrine of Discovery is a rationalization of the European conquest of the Americas, according to the commentary of numerous scholars.[20] The decision has a special significance in summing-up past history as well as being a model for future economic exploration of the final frontiers of ocean and poles on earth. Past history begins with the concepts of a “just war” and the crusades by European Christendom.

An early English judicial exposition of these ideas was the 1608 decision in Calvin’s case.[21] A citizen of Scotland petitioned the English court to obtain possession of his land that had been taken by an English citizen. The court reasoned that while Christian aliens could access the English courts, infidels were enemies of Christians and could not. Regarding infidel lands, the court wrote that after conquest “ipso facto the laws of the infidel are abrogated, for that they bee…against Christianity…the law of God and of nature.”[22] The Christian monarch acquired title to infidel lands upon conquest. This combined with discovery in the ultimate U.S. judicial formulation.

At the same time it was believed that the U.S. represented a new order and a break from European intrigue. Alexander Hamilton wrote: “Unhappily Europe, by her arms and by her negotiations, by force and by fraud, has in different degrees extended her dominion over…Africa, Asia, and America….The superiority she has long maintained has tempted her to plume herself as the mistress of the world, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have in direct terms attributed to her inhabitants a physical superiority and have gravely asserted that all animals, and with them the human species, degenerate in America that even dogs cease to bark after having breathed awhile in our atmosphere. Facts have too long supported these arrogant pretensions of the European. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother moderation.”[23]

Johnson v. M’Intosh is a statement of the “on the ground” reality that the United States is the successor to the European powers in dealings with native peoples. At a deeper and perhaps more cynical level, the case demonstrates that law can become a tool of empirical power and that there are multiple rationalizations that may be used to justify imperial power. The U.S. Constitution in Article I, Section 8, Clause 8 states that Congress has authority “to regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes.” This provision tacitly recognizes the preexisting Doctrine of Discovery.

Worchester v. Georgia

Worchester v. Georgia,[24] another opinion by Justice Marshall, reviewed under federalism a Georgia statute prohibiting non-Indians from living on Indian lands unless they had a license. Seven missionaries in violation were sentenced to four years in prison. The Supreme Court set aside the state law. While no strictly a Doctrine of Discovery case, the opinion has some interesting dicta.

Justice Marshall wrote: “The extra-territorial power of every legislature being limited in its action, to its own citizens or subjects, the very passage of this act is an assertion of jurisdiction over the Cherokee nations, and of the rights and powers consequent on jurisdiction.”[25]

“The first step, then, in the inquiry, which the Constitution and laws impose on this court, is an examination of the rightfulness of this claim.”

“America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own and governing themselves by their own laws. It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the preexisting rights of its ancient possessors.

After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in possession of a people who had made small progress in agriculture or manufacturers, and whose general employment was war, hunting, and fishing.

Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturists and manufactures?

But power, war, conquest give rights, which, after possession are conceded by the world; and which can never be controverted by those on whom they descend. We proceed, then to the actual state of things, having glanced at their origin; because holding it in our recollection might shed some light on existing pretensions.