Getting Public Rights Wrong: The Lost History of the Private Land Claims.

• Author: Ablavsky, Gregory

Table of Contents Introduction I. The Law of Private Land Claims: 1788-1851 A. Private Land Claims in the Antebellum Congress 1. The statutory history of private land claims 2. (Not) debating congressional authority B. Private Land Claims in the Antebellum Courts 1. Validating the boards of commissioners 2. Preclusive effects C. The Law of Private Claims and the Public-Rights Doctrine II. Explaining the Antebellum Law of Private Land Claims A. The Private-Land-Claims Puzzle B. The Perfect-Imperfect Dichotomy C. Explaining the Perfect-Imperfect Dichotomy D. Complicating the Perfect-Imperfect Dichotomy III. The California Land Act of 1851 A. Debating the Act B. Collapsing the Perfect-Imperfect Dichotomy C. Preclusion and "Third Persons" D. Twentieth-Century Culmination IV. Coda: The Court of Private Land Claims Conclusion: Implications Introduction

Under black-letter law, Congress may subject "public rights" to adjudication before administrative tribunals, while "private rights" must be litigated in Article III courts. (1) But parsing this distinction has proven difficult. The Supreme Court itself has conceded that it has not '"definitively explained' the distinction between public and private rights" and that "its precedents applying the public-rights doctrine have 'not been entirely consistent.'" (2) Now, amidst broader debates over the modern administrative state, the Justices have turned to history to cabin this doctrine. (3) In prominent recent cases, litigants have challenged congressional efforts to provide administrative alternatives to expensive, sometimes vexatious litigation regarding patents, (4) trademarks, (5) and bankruptcy. (6) Though these challenges failed, several Justices dissented, turning to the nineteenth-century origins of the public-rights doctrine to posit significant limits to agency authority and discretion. (7) Justice Thomas has been especially keen to argue that history cabins non-Article III adjudication, (8) but he has not been alone. Chief Justice Roberts and Justice Gorsuch's dissent in Oil States Energy Services, LLC v. Greene's Energy Group, LLC put an even more restrictive gloss on the past. (9)

These historical investigations have led the Justices and commentators alike back to Murray's Lessee, the 1856 decision that inaugurated the public-rights doctrine. (10) The case arose when a former customs collector challenged a federal seizure of his land, arguing that only a federal court exercising the "judicial power of the United States" under Article III could seize the parcel. (11) The Court upheld the seizure by crafting a dichotomy. Although most cases had to be adjudicated by the judicial power, the Court concluded, Congress had discretion over matters "involving public rights" and could determine their resolution "as it may deem proper." (12)

Unpacking the Murray's Lessee dichotomy has led the Justices and scholars down a number of byways of nineteenth-century jurisprudence. Some have burrowed into treatises, drawing parallels with Blackstonian language describing "private rights." (13) Others have delved into the era's practice and case law, especially the sprawling body of law dealing with the national public domain known as "public land adjudication." (14) Still others have looked to the intersection between the public-rights doctrine and the Due Process Clause. (15)

The result has been a welter of various terms and definitions to explain the divide between public and private rights. (16) Perhaps the clearest--and most influential--typology appears in the work of Caleb Nelson. (17) Investigating nineteenth-century jurisprudence, Nelson unearthed a "coherent" early-American framework that distinguished private rights, public rights, and quasi-private "privileges." (18) Private rights, Nelson argues, encompassed the "core" rights to security, liberty, and property identified by Blackstone. (19) These rights were "vested," meaning that legislatures could not take them away. (20) Public rights, by contrast, were entitlements that literally belonged to the public at large, like navigational rights. (21) And although "privileges" resembled private rights, they were actually entitlements that the government conferred and could freely take away; they could thus be adjudicated outside of courts. (22) The Supreme Court, especially Justice Thomas, has embraced this vocabulary in seeking to limit the scope of the public-rights doctrine. (23)

Yet this literature and framework neglect a key piece of evidence long hidden in plain sight. The Murray's Lessee decision itself used "public rights" only once. The term appeared in what has become the decision's most-cited section--a section in which the Court delineated the contours of the public-rights doctrine "[t]o avoid misconstruction upon so grave a subject." (24) Immediately after it introduced the term "public rights," the Court provided a sole example, what it called a "striking instance" of this category: the "[e]quitable claims to land by the inhabitants of ceded territories." (25) This "class of cases," the Court continued, had "repeatedly decided" that the "acts of executive officers, done under the authority of congress, were conclusive, either upon particular facts involved in the inquiry or upon the whole title." (26)

This reference may seem obscure now, but it was not at the time. The Court was alluding to a specific, and hugely significant, body of nineteenth-century law that addressed what were called "private land claims." (27) According to George Ticknor Curtis, whose 1854 treatise on federal courts was the first such treatise in the nation, these claims spawned "a peculiar system of jurisprudence, of a mixed character." (28) Curtis devoted his longest chapter--over one hundred pages--to explaining the topic. (29)

This Article explores the sprawling jurisprudence created by the private land claims. Reconstructing this unfamiliar and often complex body of law, I argue, yields a very different definition of public rights than the one advanced by Nelson, Justice Thomas, and other critics of the administrative state. The private land claims that Murray's Lessee made the definitional example of public rights were neither rights belonging to the public nor privileges that the government could freely take away. The key jurisprudential distinction that applied to these claims was not between rights and privileges, but between perfect, completed titles and imperfect, inchoate ones. Yet both were considered vested rights to property that legislatures could not take away--core private rights under Nelson's framework. Nonetheless, antebellum courts routinely held that Congress could resolve these claims itself or, alternatively, refer these claims to Article I tribunals for final adjudication. By 1868, the Supreme Court proclaimed that Congress enjoyed "plenary power" over these claims' resolution. (30)

Recovering this history does not necessarily provide a tidy typology for public rights today. But it does suggest one highly relevant and straightforward implication for current debates. Throughout the nineteenth century, the administrative adjudication of at least one form of vested rights to private property was constitutionally permissible. And Murray's Lessee elevated these private land claims into the paradigmatic example of public rights that could be resolved by administrative adjudication. To the extent that the Court is looking to the past to guide its jurisprudence, then, the history of private land claims demonstrates that the administrative adjudication of rights, including to property, is on firmer historical footing than current critics argue. (31)

The private land claims were a consequence of U.S. empire. Over the course of the nineteenth century, the United States rapidly, and often violently, expanded from a small cluster of Atlantic states into a continental behemoth. (32) But the lands over which the nation ostensibly gained sovereignty were not empty. They were the homelands of hundreds of Native nations, which, as scholars have increasingly recognized, led the United States to develop a distinctive jurisprudence to justify Indigenous dispossession. (33) But they were also home to Euro-Americans who had received lands under the prior French, Spanish, British, and Mexican regimes. After cession, both treaties and international law obligated the United States to acknowledge and protect these preexisting property rights. (34) As a result, Anglo-American jurists had to wade into and master unfamiliar and poorly documented foreign land laws to translate these property rights into federal land patents. (35) The ability to resolve these "intricate questions," a congressional commission later observed, represented the pinnacle of "legal erudition." (36)

The private land claims are a rich, if understudied, topic in U.S. legal history. They exemplify the entangled legacies of legal pluralism, racial capitalism, and the ongoing dispossession of colonized peoples, especially Latinx communities in what became the U.S. Southwest. (37) In places like California and Missouri, fights over the land claims dominated local politics, spawning intense conflicts between speculators who bought up enormous tracts and numerous "squatters" who contested these speculators' rights. (38)

No article could cover all these issues. This Article focuses here on one part of the history of private land claims: the internalist story of institutional and doctrinal development that the claims prompted. It does so partly to combat legal scholars' frequent charge that historians are uninterested in the history of formal law, as well as the claim in recent scholarship that legal doctrine somehow existed apart from histories of race and empire. (39)

In fact, the private land claims dramatically demonstrate just how consequential U.S. empire was to the development of federal law and institutions. "No problem caused Congress, officials of...