1 Chandler P. Anderson, Opinion dated September, 1907: In the Matter of the Application of the Minnesota Canal and Power Co. (State Department File No. 1718/27, National Archives).

2 21 Ops. Attys. Gen. 274.

3 A contemporaneous note on the case appeared in 21 Harvard Law Bev. 132 (1907). Under the title, “What Rule of Decision Should Control in Interstate Controversies?” the note discussed Kansas v. Colorado, 206 U.S. 46 (1907) and Georgia v. Tennessee Copper Co., 206 TJ. S. 230 (1907), noticing particularly the Court's reference to “interstate c8mmon law.” There is no suggestion that international law furnished the rule for decision. See also 1 A.J.I.L. 215, 730 (1907).

4 206 U.S. 46 (1907).

5 180 U.S. 208 (1901).

6 185 U.S. 125 (1902).

7 200 U.S. 496 (1906).

8 Constitution, Art. III.

9 In Rhode Island v. Massachusetts, 12 Pet. 657 (1838), Judge Baldwin made an extensive survey of the English origins of the Court's jurisdiction to hear and determine disputes between States and of Congress’ power to approve compacts between them. Controversies between counts palatine and other proprietaries (such as the colonies) were once subject to the King in Council, if the controversy did not arise out of agreement, and to Chancery if it did. The American Constitution reversed the practice, making agreements (compacts) subject to the political power (Congress) and controversies not founded on agreement subject to the judicial power. But neither Chancery nor the King could ever hear a complaint against a true sovereign, a purely political matter. The majority held that the usages of nations were applicable to boundary disputes between States, but Chief Justice Taney dissented, saying that in his opinion the Court had no jurisdiction to hear disputes over sovereignty. He cited Chief Justice Marshall's opinion in the Cherokee Nation v. Georgia in support of his dissent. No doubt this disagreement in the Court is traceable to the old dispute of States’ rights v. Federal power, almost a dead issue today, but entirely a Constitutional rather than an international one.

10 180 U.S. 208, 241 (1901).

11 Ibid.

12 Ibid, at 249.

13 185 U.S. 125 (1902).

14 259 U.S. 419 (1922); defined, Colorado v. Kansas, 320 U.S. 383, 392, note 2 (1943).

15 185 U.S. 125, 137 (1902).

16 Ibid. at 138, 143.

17 Ibid. at 146.

18 Ibid. at 142.

19 Ibid at 143.

20 Ibid. Italics and material in brackets supplied.

21 Ibid at 144. Italics supplied.

22 Ibid at 146, 147. See editorial by Chandler P. Anderson on the 1906 case, in 1 A.J.I.L. 730 (1907).

23 200 U.S. 496, 517 (1906).

24 Ibid, at 518.

25 Ibid. In Pennsylvania v. Wheeling and Belmont Bridge Co.,13 How. 518, 581 (1851), Chief Justice Taney, while dissenting, used these words: “The rule as to navigable waters is this: Every independent nation has the exclusive jurisdiction over the navigable waters lying within its territorial limits… . This was the situation of the old states prior to the adoption of the Constitution. Each was then an independent sovereign State. But by the Constitution of the United States they surrendered to the general government the power to regulate commerce … and thus, while they retain their absolute territorial jurisdiction over their navigable waters in all other respects, Congress may forbid … “

26 Ibid, at 519.

27 Ibid. Italics supplied.

28 Ibid. at 520.

29 Ibid.

30 Ibid.

31 Ibid. at 520, 521.

32 Ibid. at 521.

33 138 Mass. 89 (1884), cited at 200 U.S. 496, 521.

34 200 U.S. 496, 521.

35 320 U.S. 383 (1943); 38 A.J.I.L. 485 (1944).

36 325 U.S. 589 (1945).

37 206 U.S. 46 (1907).

38 Mr. Justice Holmes, it appears, may not have been so confident. Writing to Sir Frederick Pollock on Jan. 5, 1907, he was still troubled about the question he had raised in Missouri v. Illinois. “But one that one hardly can help worring [sic] over … is a fight in our court between Kansas and Colorado over the Arkansas River. Colorado depends on irrigation, Kansas says it is drying up the river. The question concerns about ½ of the United States. I think I sent you a case I wrote last term in which Missouri tried to stop the drainage of Chicago, in which I gave a light touch to fundamentals.” 1 Holmes-Pollock Letters 136 (Howe ed., 1941).“

39 51 L.Ed. 966, 206 U.S. 46, 89.

40 51 L.Ed. 964, 965.

41 51 L.Ed. 965.

42 206 U.S. 46, 85 (1907).

43 Ibid. at 97. Italics supplied.

44 Ibid. at 97, 98. Italics supplied.

45 Erie Bailroad Co. v. Tompkins, 304 U.S. 64, 78 (1938).

46 Hinderlider v. La Plata River&Cherry Creek Ditch Co., 304 U.S 92, 110 (1938), citing Kansas v. Colorado, 206 U.S. 46 (1907); Connecticut v. Massachusetts, 282 U.S. 660 (1931); New Jersey v. New York, 283 U.S. 336 (1931) and Washington v. Oregon, 297 U.S. 517 (1936).

47 181 U.S. 92, 101 (1901); quoted at 206 U.S. 46, 96.

48 Kansas v. Colorado, 206 U.S. 46, 96, 97 (1907).

49 Ibid, at 100.

50 Ibid, at 104

51 200 U.S. 496, 522 (1906).

52 206 U.S. 46, 117.

53 256 U.S. 296 (1921).

54 259 U.S. 419 (1922).

55 Ibid. at 467.

56 Ibid. at 484.

57 Ibid. at 468.

58 Ibid. at 484.

59 Wyoming v. Colorado, 286 U.S. 494 (1932).

60 Wyoming v. Colorado, 298 U.S. 573, 578 (1936).

61 Ibid, at 583.

62 Ibid.

63 Ibid, at 584.

64 Ibid, at 586.

65 Wyoming v. Colorado, 309 U.S. 572 (1940).

66 Ibid at 582.

67 325 U.S. 589 (1945).

68 Ibid. at 621.

69 Ibid, at 627.

70 282 U.S. 660 (1931).

71 In Arizona v. California, 298 U.S. 558 (1936), the Court recorded without discussion that Arizona had asserted that the Court “may have recourse to applicable principles of international law and equity tending to secure to sovereign states equality of right in [interstate streams].” The petition to file a bill of complaint was denied because the United States, a necessary party, was not named as a defendant and had not consented to be sued. Hinderlider v. La Plata R.& C.C. Ditch Co., 304 U.S. 92, 106 (1938), a case involving the application of a compact between Colorado and New Mexico, intimated that the States acted as independent sovereigns when they entered a compact approved by Congress, quoting Poole v. Fleeger, 11 Pet. 185, 209 (1837), and Rhode Island v. Massachusetts, 12 Pet. 657, 725 (1838), but quaere, What independent sovereign ever had to obtain the approval of a higher sovereignty for its treaty?

72 282 U.S. 660, 671 (1931).

73 North Dakota v. Minnesota, 263 U.S. 365 (1923); New York v. New Jersey, 256 U.S. 296 (1921) ; Connecticut v. Massachusetts, 282 U.S. 660 (1931); Washington v. Oregon, 297 U. S. 517 (1936); Colorado v. Kansas, 320 U.S. 383 (1943).

74 Wisconsin v. Illinois, 278 U.S. 367 (1929), further proceedings, 281 U.S. 179 (1930), 289 U.S. 395 (1933), 309 U.S. 569 (1940), 311 U.S. 107 (1940), 313 U.S. 547 (1941) ; New Jersey v. New York, 283 U. S. 336 (1931), further proceedings, 345 U. S. 369 (1953), 347 U.S. 995 (1954); Nebraska v. Wyoming, 295 U.S. 40 (1935), 347 U.S. 995 (1954); Nebraska v. Wyoming, 295 U.S. 40 (1935), further proceedings, 325 U.S. 589 (1945), 345 U.S. 981 (1953).

75 Nebraskav. Wyoming, 325 U.S. 589, 664 (1945). Citation in brackets supplied.

76 Ibid, at 608, 609.

77 7 Cranch 116 (1812).

78 Twenty rivers have been regulated by compact since 1922. Eleven rivers have been the subject of litigation since 1900, of which only four have been regulated by decree. Only two of the remaining seven have become the subject of regulation by compact. The inability of the Lower Colorado Basin States to reach agreement is a striking example of how litigation can make agreement almost impossible. See Documents on the Use and Control of the Waters of Interstate and International Streams, U.S. Dept. of Interior (1956).

79 Ibid. And see Hinderlider v. La Plata E.& C.C. Ditch Co., 304 U.S. 92, 105 (1938).