Cite as: 540 U. S. 56 (2003)
Kennedy, J., dissenting
(1846) ("[A]scertain[ing] and determin[ing] the boundary in dispute . . . , disconnected with the consequences which follow, is a simple question, differing little, if any, in principle from a disputed line between individuals"). Cf. Alabama v. Georgia, 23 How. 505 (1860) (settling quiet title action between States by engaging in traditional quiet title analysis).
Since "[t]here is not in fact, or by any law can be, any territory which does not belong to one or the other state; so that the only question is, to which the territory belongs," 12 Pet., at 732, a competent authority's determination that a sovereign's title lies clear and unimpaired necessarily has retrospective force. This is so despite the losing sovereign's prior attempt to gain what was not its own.
The majority, in the face of these doctrines and precedents, nonetheless relies on the proposition that Maryland's historical title is to be doubted because Virginia long disputed it and the parties undertook to resolve the dispute. It is a curious proposition to suggest that by submitting to adjudication, arbitration, or compact negotiations a party concedes its rights are less than clear. The opposite inference is just as permissible. The implication of the majority's principle, moreover, is that self-help and obdurate refusal to submit a claim to resolution have some higher standing in the law than submission of disputes to a competent authority.
Until today, the competent authorities to whom Maryland and Virginia submitted their dispute have been clear and unanimous on this point: As of 1784, the year before the Compact, the Governor of Virginia could not enter the waters of the Potomac to cool himself by virtue of any title Virginia then had to the riverbed. Title to the whole River, and its bed, was in Maryland. First, in 1877, the parties agreed, with later congressional approval, that Maryland had clear title to the whole River dating from 1632. See Black-Jenkins Opinion (1877), App. to Report of Special Master, p. D-9 (hereinafter App. to Report of Special Master) ("The intent of the [original 1632 Maryland] charter is manifest all
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