ELLIS ISLAND, N.J. OR N.Y.:  THIS LAND IS WHOSE LAND?

by Joan Biskupic

The Washington Post, January 11, 1998

ELLIS ISLAND - Here on the island where America opened its doors to more than 12 million immigrants, it is easy to understand why New Jersey and New York are engaged in a duel over which state has proper claim to the island. An ornate four-towered building from the turn of the century still marks the point that divided a foreigner’s past and future.

"Every time I’m on that island, I feel like I’m walking in my late mother’s footsteps," said Manny Strumpf, a federal worker whose job regularly takes him to the island. His mother arrived from Lithuania in early 1900 and, like the others, traveled from station to station in the once-clamorous halls for medical screening, and questions about work, financial means and moral fitness. This imposing main building, accented by copper domes and ornaments, is now a museum visited by close to 2 million people a year.

New York says the Ellis Island legacy began within its borders and the state’s claim to the island should not be stripped away now, despite New Jersey officials’ contentions that most of the 27-acre Ellis Island really belongs to them. Their dispute reaches the Supreme Court on Monday, when the justices will hear arguments over which state can claim that most of the island is within its boundaries.

To the victor will go political authority and regulation over a place at the core of America’s historical identity. Because the federal government holds title to the land, it controls activities on the island and its preservation. But there is potential for a state to earn revenue from any future building and use of the island. Except for the renovated main building, which is operated by the National Park Service, the old immigration structures are dilapidated and most of the island is undeveloped. New York now collects sales taxes on items sold at the museum’s shops, and New Jersey gets revenue from water, electricity and gas it provides the island. Strumpf, a spokesman for the park service’s regional office, said each state gets about $500,000 a year from activities on the island.

While the financial stakes may be relatively small, bragging rights to a symbol of American immigration are huge.

"There is no evidence that anyone who lived on, worked at or passed through Ellis Island during the immigration period believed that the island was in New Jersey," asserts New York Attorney General Dennis C. Vacco in a filing at the court.

New York’s argument takes on an incredulous tone at some points, seeming surprised that anyone would challenge the Empire State’s claim to the island. In one section, it compares New Jerseyites to "distant relatives who have neglected the deceased while he was alive but still hope to inherit his estate." The New York Times, editorializing on the battle four years ago, called "New Jersey’s attempt to snatch Ellis Island...unfriendly, unbecoming, un-American, untoward, unhelpful, unprincipled, unseemly, unwarranted and underhanded."

But New Jersey officials retort that "a deal’s a deal," pointing to a 1834 compact signed by both states that gave New York what was then only a 3-acre island and New Jersey the surrounding waters. As a result, they say the 24 acres that were created with landfill in the late 1800s and early 1900s for the immigration center are New Jersey’s. That land now holds dormitories, two hospitals and other administration offices supporting the main registration building.

Ellis Island’s role as a port of entry for immigrants ended in 1954 when the federal government shut down the main facility, several decades after the country’s peak immigration years around the turn of the century. The grounds and many of the brick and stone buildings fell into disrepair. In 1990, the handsomely renovated main building opened as a museum and today it remains the island’s only real attraction.

Last year a "special master" appointed by the Supreme Court to take evidence in the case essentially sided with New Jersey’s interpretation of the 1834 agreement and said the state should be able to regulate all but about 5 acres of the island.

On Monday, the justices will hear objections from both states to the report of special master Paul R. Verkuil. The high court is expected to resolve the dispute of New Jersey v. New York by next summer.

New York insists that the 1834 compact envisioned New York controlling the island, even if it were enlarged. It also argues that even if New Jersey might have been able to assert control of the landfill portions, it lost that chance over the decades as New York exercised longtime possession and New Jersey acquiesced.

New Jersey, through its filing by state Attorney General Peter Verniero, counters, "A century of conflict is not acquiescence." The state also points to historical documents that suggest New Jersey had authority over much of the island, including tax rolls and maps identifying the land as "Ellis Island, N.J."

"Some people say Ellis Island is New York’s tradition," Verniero said in an interview. "Well, that’s New York’s view of the tradition....All we’re really asking is to share. We’re talking about a shared history and a shared claim. We want joint custody of a national treasure."

The Supreme Court has "original jurisdiction" in the dispute between the two states, meaning no other lower court has heard the case. As a result, the court had to engage in the unusual practice of collecting evidence, a task it appointed Verkuil to do. And so for three weeks in the summer of 1996, the former law professor heard testimony and accepted historical records, some dating to pre-Revolution days.

In the end, Verkuil agreed mostly with New Jersey and recommended that it should have control of all but five acres. But in his advisory report to the justices, Verkuil departed slightly from what he believed the 1834 agreement and a land survey soon after required. For practical reasons, he adjusted the boundary between the two states to ensure that New York could reach its part of the island and to avoid splitting in two jurisdictions over buildings. If he had not, New Jersey could have ended up with thin strips of land between the main building (on New York’s property) and the ferry slip.

Predictably, New York objects to the bulk of the special master’s recommendations, and New Jersey agrees with most of them.

The Supreme Court can pick and choose among Verkuil’s recommendations The Justice Department, which had discouraged the court from even taking up the case, generally sides with New Jersey. Its lawyers say because the federal government holds title to the land, there is little practical consequence from New York or New Jersey getting greater regulatory control of the activities.

No matter to these two grudge neighbors, who have dug in their claims to the historical significance of the island and any future commercial development.

More than 100 million people today can claim a relative came through Ellis Island.

"Few landmarks have touched the lives of more Americans than Ellis Island," says the National Trust for Historic Preservation, siding with New York.

"If... the federal government were to relinquish control of all or part of the island and the ‘split sovereignty’ remedy were adopted," says the National Trust, "the integrity of Ellis Island’s historic character could be in jeopardy."

Update: The Washington Post, May 27, 1998:

The Supreme Court ruled 6 to 3 yesterday that Ellis Island, the historical gateway to America and the most visible symbol of the nation’s ethnic heritage, belongs mostly to New Jersey, not New York.

The decision challenged many long-standing assumptions, including those of some justices, who said they initially thought their forebears landed on "Ellis Island, N.Y."

But after a more careful review of the historic record, the court ruled that most of the 27-acre island falls within New Jersey’s borders, using as the basis for its decision an agreement between the two states signed in 1834.

Because the federal government controls the island and today operates it as a national park, as a practical matter not much will change because of the high court’s decision. What the ruling does is give New Jersey potential tax revenue, a greater voice in future development of the island and - perhaps most important for the two grudge partners - a definitive answer on who can claim the bragging rights to one of America’s most celebrated landmarks. Close to 2 million tourists visit Ellis Island every year and more than 100 million people can claim that a relative passed through there when the island served as an entry port for immigrants earlier this century.

"Every mapmaker in the world has some work to do," New Jersey Attorney General Peter Verniero said yesterday, adding that the island "is a national treasure that now New Jersey can rightly lay some claim to."

But New York Attorney General Dennis C. Vacco countered that "Ellis Island will always mean more than boundaries drawn by men or courts. Her past clearly belongs to New York. Her future belongs to all Americans."

Relying mostly on the 1834 compact, special master Paul R. Verkuil said the filled lands did indeed belong to New Jersey. In his recommendations to the court, Verkuil urged the justices to depart only slightly from the 1834 agreement for practical reasons, so that some now-existing buildings would not be split between the states.

The justices followed most of his recommendations but said they had no authority to change the boundary, even if it was practical to do so.

"[T]he lands surrounding the original island remained the sovereign property of New Jersey when the United States added landfill to them," Justice David H. Souter wrote for the court. He added that a more convenient boundary line is a matter for an arrangement between the states themselves, with the consent of the federal government.

Souter rejected New York’s position that even if the landfilled areas were once New Jersey’s, New York had long ago usurped control of the island in Upper New York Bay, 1,300 feet from Jersey City, N.J., and one mile from the tip of Manhattan in New York City.

"Many of us have parents or grandparents who landed as immigrants at ‘Ellis Island, New York,’" Justice Stephen G. Breyer wrote in a concurring statement signed by Justice Ruth Bader Ginsberg. "And when this case is argued, I assumed that history would bear out that Ellis Island was part and parcel of New York. But that is not what the record has revealed."