On February 21, 2002, the Washington State Supreme Court rules that the state's northern boundary extends beyond the 49th parallel. Since statehood in 1889, the state constitution has defined Washington’s northern boundary as running "along said forty-ninth parallel of north latitude" (State v. Norman). Treaties between the United States and Great Britain have also defined the international boundary as running along the 49th parallel. However, current scientific observations using global positioning and geodetic surveying methodology show that the marked international boundary, including official border crossings, is located hundreds of feet north of the 49th parallel.
A Strip of Nowhere?
Based on this data, three defendants who were charged with possessing controlled substances or stolen property after being searched by United States Customs officials at the border crossings appealed to the state Supreme Court, claiming that the state lacked jurisdiction to prosecute them. The defendants argued that since the plain language of the Washington constitution sets the boundary on the 49th parallel, their alleged crimes north of that point occurred outside the state.
The Supreme Court agreed that the existing international boundary (and the site of the alleged crimes) is north of the 49th parallel. However, the Court concluded that "this state's northern boundary is coextensive with the international boundary as marked" and that the defendants can be tried in Washington courts (State v. Norman). As the Bellingham Herald noted in its report on the decision, if the Court had ruled the other way, the result could have been creation of an undefined strip along the border that was part of the United States but not part of Washington. One Supreme Court justice dissented, saying the majority bypassed the words of the constitution in order to reach the result it wanted.
Beginning with the Treaty of Oregon, 1846
The Court’s majority opinion included an extensive historical review of the treaties establishing the United States-Canadian border, the legislation defining the Territory and State of Washington, and the surveys that attempted to locate the boundary on the ground.
For some time prior to 1846, the United States and Great Britain jointly occupied the territory west of the Rocky Mountains and north of the 42nd parallel (the northern boundary of California). In 1846, the two countries settled their competing claims to the territory in the Treaty of Oregon, which provided that the boundary between the United States and Canada "shall be continued westward along the said forty-ninth parallel of north latitude to the middle of the channel which separates the continent from Vancouver's Island" (State v. Norman). In 1848, the United States Congress created the Oregon Territory, consisting of all United States territory west of the Rockies and north of the 42nd parallel. In 1853, Congress created the Washington Territory out of a "portion of Oregon Territory lying and being south of the forty-ninth degree of north latitude" (State v. Norman).
It was not until the late 1850s that the boundary defined in the 1846 Treaty of Oregon was first surveyed. In 1856, Congress authorized a survey, and the survey was carried out between approximately 1858 and 1862. The surveyors took astronomic observations for latitude at selected stations within easily measurable distances of the 49th parallel. Once they calculated the latitude at the station, they measured the required distance north or south, as necessary, from the latitude at the station to reach the 49th parallel. The boundary was then traced along the parallel from the established points. However, even at the time, the surveyors were aware that the line marked was not always on the actual 49th parallel, and various errors of hundreds of feet were discovered when a joint commission sought to combine British and American surveys.
Border Estimations and Imprecisions
There were two causes for the errors. First, local land masses can create gravitational pulls that cause deflections of plumb lines used in the astronomical observations that calculated latitude. Second, once points on the boundary were marked, the boundary between them was established as a straight line, whereas a line of latitude by definition is a curved line.
A series of maps dated May 7, 1869, shows the location of the boundary markers established by the joint survey commission. In a Declaration approved in 1870, the United States and Great Britain agreed that this boundary marked on the ground correctly indicated the boundary along the 49th parallel.
On February 22, 1889, Congress passed the Enabling Act that authorized the Washington Territory "as at present described" to enter the Union as a state, and on August 19, 1889, the Washington State Constitutional Convention adopted the provision describing the northern border of the state as "thence West along said forty-ninth parallel of north latitude" (State v. Norman).
In 1908, another treaty between the United States and Great Britain addressed the international border. In the treaty article dealing with the 49th parallel west of the Rocky Mountains, the two countries agreed that the "remonumenting" of the line established by the 1858 survey would be deemed to be the international boundary as established by the treaties.
In its February 21, 2002, opinion, the Supreme Court majority decided based on this history that when Congress authorized the creation of the State of Washington it intended that the northern boundary would be coextensive with the international boundary as marked, even if that were not actually on the 49th parallel mentioned in the treaties and legislation. The court reasoned that Congress intended the state to have the same boundary it had as a territory, that the territory boundary was the international boundary, and that the two countries had agreed that the international boundary defined by the 49th parallel would be the boundary marked on the ground even where that line did not actually lie on the parallel.
Therefore, even though the state constitution says the boundary is the 49th parallel, there is no gap between the state and international borders. Washington officially extends to where the border is marked, and the crossing points are, even where these are north of the parallel by hundreds of feet.