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

Copyright © 1999 All rights for republication revert to the original author.