Motion for Leave to File Objections Obections of Texas to Motion of Rhode Island Providence Plantations for Leave to File Complaint — Anderson v. McKay

E PRELIMINARY STATEMENT... .. 2

; “The Complaint Does Not State A Case Or Con.

troveray Within The Jurisdiction Of This Court 3

re Rhode Island’s Principal Complaints Relat-

a ing To Alleged Threatened Injuries To Its

Fishing Industry And Relating To Alleged |

-Ampairment Of 1s Soversign Status From

„ Possible Differences In: The Width Of The

Beit Of Submerged Lands Affected By Pub-

lie Law 31—Present Nothing More Than An

etn a vi semanas Feltical ‘

Op IN ELM REL IE, EL BRE NDS: LT

„ deer Inland Has No Standing In Its So

: . tlonality Of Public | OO ES |

Rhode Island 18 Without Standing 7

tion The Constitutionality Of Public Law 31

2 on Behalf Of Its Citizens. 15

SECOND OBJECTION 5 AIT 4

g Rhode Island's Action Ig In Substance And Ef-

, fect Against The United States, And, Conse-

quently, The United States ts An Indispensable a

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TABLE or Aurnonrrus

1

Cases :

; 5 Page

Arizons v. California, 283 U.S. 423 . 12

chicago & S. Air Lines, Inc. v. Waterman Steamship

Corp., 388 U.S. 108 1 8, 10

Coleman v. Miller, 307 U.S. 438 N 10

Florida v. Mellon, 278 U.S. 12 16

Foster v. Neilson, 2 Pet. 253 6

Frothingham v. Mellon, 262 US. 447 | 13

Garcia v. Lee, 12 Pet. 611 7

Georgia v. Pennsylvania R.R., $24 U.S. 439 17

Georgia v. Stanton, 6 Wall. 50. 10

Hopkins Savings Ass'n v. Cleary, 296 U.. 31. 18

In re Cooper, 143 U.S. 42 3

Jones v. United States, 187 U.S. 202 5

Louisiana v. Garfield, 211 U.S. 70 20

‘Louisiana v. MeAdoo, 234 U.S. 67 20

_ Massachusetts v. Mellon, 262 U.S. 470, 15. 19

‘Massachusetts v. Missouri, 308 U.S. 1 „

Minnesota v: United States, 305 US. 32 290

"Missouri v. Holland, 262 U.S. 416_ 18

Missouri v. Illinois, 200 U.S. 496 11

Nebraska v. Wyoming, 325 U.S. 589 11

New Jersey v. Sargent, 269 U.S. 328. ä

New York v. New Jersey, 256 US. 296 11

Oregon v. Hitchcock, 202 U.S. 60 E

Teründen v. Ames, 184 US. 270 8

The Chinese Exclusion Case, 130 US. 581 —ů ˖ ˙ ae

— |

——— ——ů —UUU— ee

——— — — 2 — — — — ere

eee everson ae ‘

——

| TABLE OF AUTHORITIES 11

5

— ? «

—

— —

— ry = 1 * Page

United States v. Arredondo, 6 Pet. 6 117

United States v. Califordia, 882 US. 19 [ae

United States v. Lynde, 11 Wall. oa aa

United States v. Reynes, 9 How. “Saeed aie 7

United States v. San Francisco, 310 US. 16. 15

United States v. Texas, 143 U.S. 621... -

United States v. Texas, 339 U.S. 707. 14

Ware v. Hylton, 3 Dall. bh 10

Whitney v. Robertson, 124 US. 190 .

Wilson v. Shaw, 204 U.. 24 . . 8

Z. & F. e Realization Corp. v Hull, 811 US. 4 470 8, 10

P.L. 31, e. 65, 88rd-Cong., Ist Sess., 19538. 4

—

st Miscellaneous 5

Field, 8 Minn. I. Rev. 4. 1

1

Weston, 38 Harv. L. Rev. 9 ——ʃ 89

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20

ee

IN THE

bunten Court of the Anited Staten

OCTOBER TERM, 1953 .

Se 5 ree

0 „ Original ae |

3 — poe ne

_1 © STATE or RHODE ISLAND AND.

Fenner PLANTATIONS,

Ps Cees

4 3

’ Spare | OF LOUISIANA; STATE OF FLORIDA; STATE. OF

Texas; STATE or C 5

PHREY ; DOUGLAS “McKay;

ivy BAKER PRIEST. . Ge ate

= O * 2

7 * 1 N é —

MOTION FoR LEAVE | TO FILE OBJECTIONS

8 of,

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2

: The State of caer its Attorney. 93 asks a

leave of the Court to file its · objections to the motion

_. filed herein by the State of Rhode Island for leave

ol this Court to, file its complaint against the State

f of Texas, the State of Louisiana, the State of Florida,

tbe State of California, George M. Humphrey, Doug -

las McKay, Robert B- Anderson, and Ivy Baker

Priest, which complaint is submitted therewith

JOHN BEN SHEPPERD *

Attorney General of Texas

J , 8 ‘ 784

* . 2 *

- PRELIMIN ARY STATEMENT

ue State of Texas appears here for the sole pur-

pose of objecting to the motion of tie State of Rhode

Island and Providence Plantations for leave to file

complains. „ 4

. Rhode Island's e and its accompanying f

brief in support thereof are in substance and effect,

and in most instances in verbiage, identical with the

complaint and arguments heretofore filed by the’ |

State of Alabama against Texas and the other states :

and individuals here complained of. Therefore, Tex-

as’ objections are the same in most respeets. 2

Texas’ first objection is that the complaint which:

Rhode Island seeks leave to file presents no case or

„ within the jurisdiction of this Court for

the reasons that (1) Rhode Island’s principal com-

plaints relating to alleged threatened injuries to its

fishing industry and relating to alleged impairment ö

of its sovereign status from possible differences in

the width of the belt of submerged lands affected by

Publie Law 31—present nothing more than an ab-

, stract question of international political j power; and

02) Rhode Island has no standing to sue in its sover-

eign capacity. or in the. capacity’ of quasi-sovereign f

or parens pdtriae because of any other reasons

named in its complaint. 4

Texas second objection is that | leave to file Rhode

Island’s complaint should be denied because of the |

absence * — United States as a . f

©

. : 5 2 es

FIRST OBJECTION eae

x 4

| ‘The Complaint Does Not State 8 Case or

| Controversy Within the Jurisiliction 01 This Court

Rhode ident 8 principal complainte—relating to al-

le ed threatened injuries to its fishing industry

relating to alieged impairment of its sover-

eign status from possible differences in the

width of the belt of submerged lands affect-

ed by Public Law 31-—present nothing ©

more than an abstract question of in-

; ternational political power .

Rhode Island’s most emphatic complaints ars based

on the same facts and argument and may be con-

veniently ‘discussed in conjunction with each other.

Asa quasi-sovereign representative of her citizens

engaged in the fishing industry, Rhode Island claims

standing to sue to prevent Texas, Louisiana, and

Florida from asserting rightsgin the Gulf of M

ico in the area between three and nine nautical nites. of

It is.argued that such assertions, if authorized by

Public Law 31, operate as an alleged repudiation of

treaty obligations of the United States to limit its

claims in territorial waters to a belt three rhiles in

width from its coast, the alléged possible end result

being a deprivation of rights of Rhode Island fisher- .

men to fish in various waters within nine nautical.

miles of Canadian shores. (Comp., 1. XVII. XXVI;

Br., pp. 8, 11-13, 33-35.)

And, in support of her alleged sovereign ca lr

to sue, Rhode Island again devotes maximum atten-

*

: tion to possible differences i in the width of the belt

of submerged lands affected by Public Law 31. In

a = this connection, complainant says that under Public

Law 31 Rhode Island, unlike the three. defendant

States of Texas, Louisiana, and Florida, “is not per-

mitted to extend its territorial boundaries nine nau-

miles off the coast, but is limited to a belt three :

+ nautical miles * in width and to the natural resources

- “thereunder.” (Br., p. 7.) Rhode Island’s complaint

here is that it “is entitled to equal treatment” with

Texas, Louisiana, and Florida because both inter-

national law and determinations of the United States

Government in the conduct of its foreign relations

refer to the permissible width of the belt of terri-

torial waters as three 2 autieal miles, and because

“this rule is binding equally” on Texas, Louisiana,

and Florida. (Comp., 11 X, XII, XIV.) Rhode Island

ä argues that Public Law 21 should not be construed as

a @ statutory repeal of “three-mile” treaty obligations

[Br., pp. 38-35) while at the same tacitly recog-.

nizing a clear conflict to some t between the

terms of Public Law 31 and the three-mile rule. Com-

palainant's prayer in this connection is that Public

Law 31 be declared void to the extent that such law

is construed” to confer on Texas, Louisiana, and

Florida any rights in the maritime belt lying sea-

ward between three and nine nautical miles from the

ordinary low water mark.” (Comp., p. 21 ““.)

- Thus, the argument presented to support both of

Rhode Island’s major complaints clearly demon-

; * Actually, Section 4 of the Submerged Lands Act ap-

proves and confirms a seaward boundary for Rhode Island

at “three geographic miles” distant from its coast: line.

Es ta: he 6, Os Soe OG Ist Sess., 1953.

— *

; strates that these complaints are founded on | Rhode

Island’s interpretation of and reliance upon former

rules and determinations “of the United States Gov- -

ernment in the conduct of its foreign relations“

‘specifically, the three-mile territorial waters rule.

Rhode Island’s predicate for each of these two com-

plaints appeurs to be the anomalous idea that the,

political departments of the United States Govern- .

ment, which have exclusive power over foreign rela-

tions, are without power to modify their former poli-

cies in any manner-whatsoever for the purpose of

‘creating and carrying out new policies of the United

States with respect to the natufal resources in and

under the marginal sea.

Texas submits that. both of Rhode Island’s argu-

ments relating to the width of the territorial belt

affected by Public Law $1 are, in the last analysis, |

and the President to. uct foreign affairs, an ine

dent of which is the detemmnination of national bound-

aries in the marginal seas, whether for the limited

purposes pertaining to utilization of natural re-

sources which are involved in Public Law 31 or for

all purposes. As such, these principal complaints

present oe — which can. be deter.

; — ä be served by considering these |

moneys separately from on the resources themselves.

mined only by the legislative and executive (the · po-

ltiieal“) branches of the Government:*

This Court has so reasoned in a great variety of

cases, one group of which is represented by Foster v.

Neilson, 2 Pet. 253 (1829). In that case each party

asserted a title to the same tract of land in Louisiana,

the plaintiff alleging a title based on a Spanish grant

during 1804. The defense was that such Spanish

grants were void due to th¢ fact that Spain had ceded

the entire area between the Perdido. and Iberville

Rivers to France by the Treaty of St. Ildefonso (by

which Spain had ceded Louisiana to France) and

that this disputed area was acquired by the United

States from France in the Louisiana Purchase in

1803. The meaning of the crucial provision of the

Treaty, which controlled the lawsuit, was conceded

by the Court

_pluintiff/and the American construction favoring

defendant, © ee oe

In affirming a dismissal.of the suit, Chief, Justice

Marshall pointed out that fae

bes

\

3 \

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3 228 ts interests against e cece con-

fided. „2 Pet. at 307.) 5 75

And, after observing the various congressional acts

respecting t te disputed area, the Court added:

„„ 1

If those department which are in-

\ trusted with the fo gn intercourse of the na-

| \ tion, which assert and maintain its interests

pas against foreign powers, have unequivocally as-

serted its rights of dominion over a country

which is in its possession, and whieh it claims

under a treaty; if the legislature has acted-on

the construction thus asserted, it is not in its

own courts that this construction is to be denied.

A question like this respecting the boundaries of

nations is, as has been truly said, more a poli-

tical than a legal question; and in its — 4

the courts of every country 8 ro-

nounced will of the — 80

— 2 ——— ků— d

"Subsequent 1 reiterate en 3 es

_ boundary matters present political questions for the

| executive and legislative departments and that a de-

tween a state and the United States..See United

States v. Teras, 148 U.S. 621, 639 (1892).

Likewise, this Court in United States v. Califor-.

nia, 332 U.S. 19, 34 (1947), with reference to the

identical international frontier here involved, ac-

knowledged the binding effect upon the judiciary of

: assertions by the political departments of dominion

over the marginal seas and the binding effect of de-

_ lineations by those departments of the geographical

limite of such dominion. The Court's reli oe

the principles approved in Jenes v. United States,

137 U.S. 202, 212-214 (1890), and In re Cooper, 143

U.S. 472, 502-608 (1902), supports Texas’ convit-

tion that questions of boundary making in the margi-

nal sea are indistinguishable from, foreign relations

issues in general and that the determination of all

such issues by the political departments conclusively

_ binds the courts and removes those questions from

; opinion) ; Wilson

„„

the scope of judieial power delegated by Article III of

„ Air Lines, Inc. v.

Waterman Steamship 333 U.S. 103, 111

(1948); Z. 4 F. SF Asoste Realioation Corp. Hull, 311

U. S. 470, 490 (1941) (

164 UB, 270, 288 (1902). Soo Pid, The Doctring

a of Political Queetions In, The Federal Courts, 8 Minn.

— Lente uin Ar

equired. . ‘that each of

. state—a

N e

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1

L. Rev. 485, 494-502 (1924); Weston, Political

Questions, 38 Harv. L. Rev. 296, 315-316 (1925).

| _ Rhode 1. s concluding argument in support

| of its two main complaints is that assertions by

Teras, Louisiana, and Florida of rights beyond th¢ -

hre » boundary are “a violation of international

treaties” and, that Congress’ clear language in Pub-

| lie Law 31, releasing and confirming in the states

| certain rights d titles within historic seaward

| boundaries located within three maring—leagues

+—in the Gulf of Mexico, should not be construed to

authorize any assertions beyond a three-mile bound-

ary. This argument is obviously motivated by Rhode

Island’s strong preference for the national policies

implemented by these treaties rather than the nation-

al policies which are implemented by Public Law 31.

In any event, the argument further illustrates the

i

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aif

ii

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il

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190, 94 (1888). ct. Were v. Min, 3 Dal 399

)

eS

260-261 (1796) (Opinion of Iredell, J.

conceding that certain treaties or other

af tatorty ws eared In Publ Law 3, no judi-

as no

cial issue js presented. As stated in The Chinese Ex-

clusion Case, 180 US. 581, 602 (1889):

n. whethier government is

J with

. is not one for the a

af the courts.”

Since it e e of Cals Cont.

to determine who may invoke its jurisdiction and

under what circumstances, it is well within the

: Court’s power to dismiss for lack of j ction any

action before it which pr presents o political .ques-

tions. Chicago & S. Air Lines, Ine. v. Waterman

Steamship Corp., 383 U.S. 103 (1948); Maseachu-

setts v. Mellon, 262 U.S. 447 (1923) ; Georgia v.

Stanton, 6 Wall. 50 (1867). See Coleman v. Miller,

307-U.S. 488, 466, 460 (1989) (Concurring opin.

ions); Z. & F. Assets Realization Corp. v. Hull,

311 U.S. £70, 490 (Concurring opinion).

mn the Court should exereise judicial el Unt

tation in this instance and should deny Rhode Island

_ Weave to file is manifest from the action of the Court

SO 4

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3 ee i

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I sto the Rhode Inland fishing industiy were

not § eee f ee

of the political departments, still that com-

plaint fails to state a “case or controversy” within

the cognizance of this Court. Allegations and accom-

panying arguments that economic interests of its

citizens are in jeopardy because Rhode Island is

“fearful” that the claims or actions of Texas and

other states will invite“ retaliatory claims by Can-

ada, which “might” take the form of total .

sion or may result“ in a policy of gr reg

license fees, are patently insufficient. (Comp., 1

XXVI; Br., p. 34.) No injury, or threatened,

is shown.

By its own nee Rhode Island shows that any

fear of injury to Rhode Island or its eitizens is based

purely upon supposition and speculation as to the

_ possible effects that might result if a foreign power

should-seize upon this Act of the Congress as an

_ excuse to repudiate a treaty with the United States.

—12— 2

——

(1845); Arizona v. California, 283 U.S. 423, 462-464

(1931); New Jersey v. Sargent, 269 U.S. 328, 338

(1925). e 7 45

Clearly, Rhode Island's complaint concerning pos-

sible injury to its citizen fishermen, when measured

by the rules pronounced by this Court, falls far short

of stating a “case or controvérsy.” . .

Rhode Island Has No Standing In Its Sovereign

Capacity To Question The Constitutionality

= : Of Public Law 31

nations, o 11 |

detracts from it, is a for consideration

| — their separate

Texas asserts its rights to the natural resafirces is

a matter solely between Texas and the federal gov-

ernment. It is submitted, therefore, that no legal

rights of Rhode Istand-have~beeninvatted—by the

alleged assertions of Texas.

Under such circumstarices it is clear that Rhode

Island’s complaint presents no actual controversy

for determination by this Court. As stated in

Massachusetts v. Missouri, 308 U.S: 1, 15 (1939),

for there to be a justiciable controversy “it must

appear that the complaining State has suffered a

wrong through the action of the other State, fur-

nishing ground for judicial redress, or is asserting

a right against the other State, which is Susceptible

of judicial enforcement according to the accepted

principles of the common law or Salty systems of

_jurisprudence.”;

Even if it 555 be said that Rhode Island has suf-

fered injury by the alleged acts of the State of Texas

under Public Law 31, it is apparent that this injury

is one that is suffered by Rhode Island in common

with all the other states of the Union and therefore

affords.no basis for the action which Island

seeks to bring. This principle was in

e ee ee or 447, N =

—] 4

taining and e the law applicable to the

controversy. It amounts to little more than the

negative power to disregard an unconstitutional

enactment, which 2 would stand in the

“way of the enforcement of a legal right. The

party who invokes the power must be able to

show not only that the statute is invalid but

that he has sustained or is immediately in dang-

er of sustaining some direct injury as the re-

— of its enforcement, arid not merely that he:

ers in some indefinite way in common with

people generally.”

Rhode Island argues further that its 3

interests are adversely affected by the claims of

Texas, Louisiana, Florida, and California with re-

_ spect to all the natural resources in and under all

portions of the marginal sea, including the area

within three miles from shore. The , this addi-

tional contention is the idea that national sovereign

interests have been: actually and improperly dele-

_ gated to these states by Public Law 31, because it is

alleged that national sovereign interests are in-

1 5 separably tied to and therefore must follow the pro-

interests expressly confirmed in the states

Public Law 31. (Comp., 1 XXIX; Br., pp. 17-18.)

This idea to be derived from Rhode Island’s

of this Court’s holding in United States

v. Tewas, 339 U.S. 707 (1960). Texas denies that

the holding of the Court in that case is properly sub-

ject to the construction which Rhode Island seeks

to place upon it. 3

However, even if the opinion of the Court in the

Teras case were properly of that con-

6— caer ie this would

C ˙

—15— 7 a

confer any sovereign 8 6 on the

State of Rhode Island, a purely local sovereign. Even

if it could be said that these property rights in and

to the natural resources of the marginal sea are in-

separable from the national sovereign, the national

sovereign would hold these rights for the benefit of

all the people and not for the individual states as

such. This was expressly recognized in the opinion

of this Court in United States v. California, 332 U.S.

19, 40, where, in reference to the identical interests

. there involved, it was said that “the Government

-holds its interests here as elsewhere in trust for all

the people.” (Emphasis added.) Rhode Island's

status as a local sovereign in no way gives it any

standing to bring a suit to enforce rights held for

“all the people.” If there is any such “trust” for “all

the people,” Congress alone may determine how it

shall be enforced and administered. United States

v. San Francisco, 310 U.S. 16, 29-30 (1940). 2 ,

Rhode Island Is Without Standing To Question

The Constitutionality of Public Law $1, On

Behalf Of Its Citigens

In Massachusetts v. Mellon, 262 U.S. 447 (1923),

this Court held that an attack upon the constitution-

assachusetts, ‘asserting that it had standing to

ring the suit in its sovereign capacity and also in a

> gapacity of ‘representative or as parens patrias of

its citizens, en to challenge the eonstitutionalit7

of the Maternity Act. In denying the right of Massa- *

cChusetts to bring the suit) the Court: 1 Fe)

But the citizens of Masiachnectis are

sha citizens of the United States. It cannot. be

conceded that a State, as parens patriae, may

institute judicial- proceedings to protect citizens

of the United States from the operation ↄf the

__ statutes thereof. While the State, under some

circumstances, may sue in that capacity. for the

protection of its citizens (Missouri u, Illinois,

180 U.S. 208, 241), it is no of its duty. or

power to enforce their rights in respect . of

s their relations with the Federal Government.

i In that field it is the United.States, and not the

State, which represents them as parens patriae,

Per ge ey EE ne ype

*

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17

statute and that there was no. way in which. Florida

eould Secure the same benefits for its citizens as were

given eitizens of other states 1 U.S. at 16), the

~

ees said:

5 “Nor can ‘the suit it be n maintained by the state :

because of any injury 40 its

94 Also citizens of e United States and ‘subject to N f

its laws. In respect of their relations with the

federal government it is the United States, and

5 pat᷑riae, when vee reprenentation becomes ap-

- propriate; and to the former, and not to the lat-

as flow from that status.’ Massachusetts w. Mel-

bon supra, pp. 485-486. 25 oP B. 8. at 120

Rhode Tsland relies heavily upop Georgia v. Penn-

5), in an attempt

to escape the application of the ‘principle clearly

_ “enunciated in Massachusetts v. Mellon and Florida v.

Mellon. But Georgia v. Pennsylvania R. R. did not

sylvania R. R., 324 U. S. 439 (19

involve an attack by the State of Georgia on behalf

not the tate, 2 represents them As parens ve

7

ter, they must look for such protective measures.

. of its citizens upon the constitutionality of a federal

Stat“. In fact, it was just the opposite. There,

N

ö

3

Georgia was asserting rights based on a federal stat-

ute in seeking to protect its citizens from a price- |

fixing conspiracy, while here Rhode Island is-attack. -

r — W |

K. R. the Court expressly recognized this distinction oe:

between an attack“ upon a federal statute and a

suit based“ on a federal statute. In categorizing the

Cases Ot within its — jurisdiction and dis-

2

„„

ae the. case before it from Massachusetts v.

Mellon and Florida v. Mellon, the Court said:

„Moreover, Massachusetts v. M * and

Florida v. Mellon, supra, make plain that the

United States, not the State, represents the eiti-

ens as parens patriae in their relations to the}

Federal Government. 2

The present controversy, however, does no

fall within any of those categories. This is a

civil, not a ee ely ee, ing. Nor is this

a situation where the United States rather than

Georgia stands as parens patriae to the ‘Cie

ens of Georgia. This is not a suit like those in

Massachusetts v. Mellon arfd Florida v. Mellon,

supra, where a State sought to protect her citi-

. zens reid the operation of federal statutes.

Here Geo rgia asserts rights hased on the anti-

trust laws. (324 U.S. at 44 47.)

Unlike Georgia v. 3 R. R., this suit

by Rhode Island on behalf of its citizens is one in

which a state is attempting to protect its citizens

from the effect of a federal statute, as was the case:

in Massachusetts v. Mellon and Florida v. Mellon.

tly, this is an attempt by Rhode Island to

représent its citizens in their relations with the fed-

eral government. This Rhode Island cannot do. In re-

3 BF

Island. stands a parens patrige to the citizens of

Nö (Br., pp. 16-17) that

Missouri v. Holland, 252 U. 8. 416 (1920), and Hop-

kins Savings An v. Ce 296 U. 8. 315 (1935),

i —-19—

| show that a state haj standing as representative of

its citizens o challenge the constitutionality of a

federal statu hay neither of these cases detracts |

from nor wea the clear holdings of M assachu-

setts v. Mellon Florida v. Mellon.

Missouri v. Holland was decided prior to the Mas-

| sachusetts case and was there considered by the

Court to be a suit, not on-behalf of citizens, but to

prevent an invasion of the right of Missouri to reg-

ulate the taking of wild game within its borders.

Massachusetts v. Mellon, 262 U. S] 447, 482 (19239.

And in the Hopkins Savings case, the Court noted a

patent distipetion from the facts of the Massachu-

:_ setts * as follows: : 5

Aa; . The “ruling [Massachusetts v. Mellon!

was 1 it was no part of the duty or power of

a state to enforce the rights of its citizens in re-

spect of their relations to the Federal Govern-

ment. Cf. Florida v. Mellon, 273 U. S. 12. Here,

on the contrary, the state becomes a suitor to

: protect the interests of its citizens against the

Aunlawful acts of tions created by the

- state itself.” (296 U UB a

| 20

2 8

SECOND OBJECTION

. Rhode Island’s Action Is in Substance end Effect

Against The United States, and, Consequently,

The United Sta an Indispensable Party

The essence of Rhode Island's complaint is a chal-

lenge to the authority of the United Stafés, under_

Public Law 31, to dispose of its title and proprietary

interest in lands, minerals, and other natural re-

since the nature of its tenure is controlling. .

The Court has consistently held that in deciding

whether a suit involving title or property rights is

actually one against the United States, the pleadings

must be tested by considering whether the relief

sought, if granted, would determine rights of the

United States. Oregon v. Hitchcock, 202 U. S. 60

(908); Louisiana v. Garfield, 211 U. S. 70

(1908); Minnesota v. United States, 305 U. 8. 382

Such being the rule, it is apparent tha

have to be dismissed if permitted to be filed, the Court

should deny leave to file the complaint. — v.

* 234 U. S. 627, 628 (1914). ss

| CONCLUSION, ee 0

The complaint states no case or controversy with- -

in the jurisdiction of this Court since its main points

present only a political question and its allegations as

+ a whole fail to show that Rhode Island has standing

: to sue either as sovereign or on behalf of its citizens.

Furthermore, jurisdiction should not be taken be-

x < cause the United States is an indispensable party |

7 and has not been joined. ee

* WII EREFORE, the motion ‘for leave to fil the

_ complaint should be denied. -

- Respectfully submitted,

JOHN BEN SHEPPERD —_

Attorney General of Texas

. January. 1954

. 8 4

—22— 6 2

CERTIFICATE OF SERVICE

L William H. Holloway, certify that I have served

a copy of the foregoing motion for leave to file ob-

jections and objections of State of Texas to motion of

State of Rhode Island and Providence Plantations

for leave to file complaint on the following named °

individuals 1 3 a copy of same to — 1

Hon: William E. Powers”

5 D. C.

dia. Douglas MeKay 5

Attorney General of Rhode Island Secretary of the Interior

Providence County Court House

Providence, Rhode Island

Department of the Interior

Hon. Ivy Baker Priest

Treasurer of the United States

Department 1 2 Treasury

e sts

Hon. Herbert 3 Ir. —

Attorney General