Articles From Readers of National Pique

The Equal Footing Requirement
By: John A. Fleming
Equal Footing, when we are discussing States and their entry into our federal
union from territorial status, is not a doctrine and it did not originate in the
U.S. Constitution, as some jurists, historians, and others claim. The term equal
footing stems from our nations basic understanding of the original States of the
federal union, that they each had the same rights of sovereignty, freedom, and
independence as the other. Our Declaration of Independence and Articles of
Confederation made this very clear……it was established for the world to see by
our revolution. The King of Great Britain, in the Treaty with Great
Britain(1783), acknowledged the fact that the individual thirteen States (by
name) were "to be free, sovereign and independent States".

Many of the court cases concerning Indians and their tribes, involve the "equal
footing doctrine" and it is not unusual for the judges involved to disregard the
basic facts of what equal footing really is and to declare that certain States
joined the Union (from territorial status) with its' lands encumbered by Indian
treaty rights. Such rulings are absurd and without Constitutional authority. The
word doctrine itself implies an opinion, principal, dogma, etc. , that one
believes or insists is true. In this specific case , the use of the term equal
footing, the source of the term and its use comes from an Article of Compact. We
are dealing with the terms (or conditions) of an Article of Compact "between the
original thirteen States and the people of the said territory, to remain forever
unalterable, unless by common consent" (Tucker, pg. 603). We are not dealing
with a doctrine here; instead, were are involved with a firm compact. This
Compact had several elements as a basis:

* First, the Act of the Virginia General Assembly (dated October 20,1783) to
convey its' Northwest Territories to the Congress Assembled (of the U. S. of A.)
in which a number of conditions were stipulated to include that the States to be
created from the said territories shall be distinct Republican States, "and
admitted members of the federal union, having the same rights of sovereignty,
freedom, and independence, as the other States;".

* Second, The Northwest Ordinance (dated July 13, 1787), which is the actual
Article of compact, requires certain conditions for the new States (their roots
being from territories controlled by the Congress Assembled of the
Confederation) that included the new State governments to be formed shall be
republican, and "shall be admitted, by its delegates, into the Congress of the
United States, on an equal footing with the original States in all respects
whatever,".

* Thirdly, the General Assembly of the Commonwealth of Virginia, by an act
dated October 20,1788, ratified the terms of the cession of its territorial
lands to the U.S. , and again stated the terms (conditions) to include the
requirement that the new States developed from the territories controlled by the
U.S. of A., have Constitutions and governments that are republican, and that
"such States shall be admitted by its Delegates into the Congress of the U.S. ,
on an equal footing with the original States".

The term equal footing, then, is found in a conveyance of territories to the
Confederations Congress Assembled, ownership of which is in the States of the
union-in common (not the federal government), that is binding on both parties,
conveyor and conveyee, and binding in a manner far more restrictive then
amending the Constitution or eliminating a federal statute. To change this
Article of Compact requires common consent by all States of the union.

Regarding both the equal footing requirement and other conditions of the
Virginia deed and the Ordinance of 1787, it must be noted that the Articles of
Confederation themselves gave no hint or direction about territories owned or
controlled by the Confederations Congress Assembled. This is not true about
States. The Articles mention territories of States more then once-and give
certain direction in the matter of State territories. The drafting of the
particular part of our Constitution concerning new States and Territories,
Article IV, Sec.3(a), was done between May 25, 1787, and September 17, 1787, to
provide Congress with the power to regulate and dispose of the territories it,
the Congress of the Confederation, then controlled, namely the territory ceded
by Virginia. This Article (IV, Sec.3a) was designed to meet the requirements of
the federal government in its efforts to dispose of the territories it then
controlled and would in the future control, that belonged, in common to all the
States.

Our Constitution requires the federal government to live up to the obligations
of the Confederation, all debts contracted and engagements entered into , before
the adoption of the Constitution (Art. VI, a,). Indeed the Article of Compact,
above mentioned, is one of those "engagements". Our Constitution also sets
standards for treaties. The non-self executing treaties, where the Congress gave
lands to Indian tribes (and other rights-such as water rights) in conflict with
the delegated powers and Compacts that restricted the federal government
regarding lands, are becoming apparent and need to be addressed.
John A. Fleming

August 21, 1999

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Article posted: Friday, September 24, 1999

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