504
Opinion of the Court
That reference to a "colorable claim" is at the crux of this case. Both the District Court and the Ninth Circuit interpreted the "colorable claim" requirement as imposing a burden on the State to demonstrate by a preponderance of the evidence that the Brother Jonathan meets the criteria set forth in the ASA. See 102 F. 3d, at 386; 883 F. Supp., at 1349. Other Courts of Appeals have concluded that a State need only make a bare assertion to ownership of a res in order to establish its sovereign immunity in an in rem admiralty action. See, e. g., Zych, 960 F. 2d, at 670.
By our reasoning, however, either approach glosses over an important distinction present here. In this case, unlike in Treasure Salvors, DSR asserts rights to a res that is not in the possession of the State. The Eleventh Amendment's role in that type of dispute was not decided by the plurality opinion in Treasure Salvors, which decided "whether a federal court exercising admiralty in rem jurisdiction may seize property held by state officials under a claim that the property belongs to the State." 458 U. S., at 683; see also id., at 697 ("In ruling that the Eleventh Amendment does not bar execution of the warrant, we need not decide the extent to which a federal district court exercising admiralty in rem jurisdiction over property before the court may adjudicate the rights of claimants to that property as against sovereigns that did not appear and voluntarily assert any claim that they had to the res").
Nor did the opinions in New York I or New York II address a situation comparable to this case. The holding in New York I explained that, although the suit at issue was styled as an in rem libel action seeking recovery of damages against tugboats chartered by the State, the proceedings were actually "in the nature of an action in personam against [the Superintendent of Public Works of the State of New York], not individually, but in his [official] capacity." 256 U. S., at 501. The action in New York II was an in rem suit against a vessel described as being "at all times mentioned in the
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