The Story of New Jersey’s Jurisdiction over Ellis Island

By William E. Andersen

Ellis Island is well-known as the gateway to the United States for more than 12 million immigrants from 1891 to 1954. It was not always that way. In pre-contact times, the island, and two others nearby, almost disappeared at high tides. The Native Americans then called it “Gull Island.” The Dutch called the three islands “The Oyster Islands,” because of the plentiful supply once there and elsewhere in the harbor. During the Colonial Period, it was sometimes called “Anderson Island” because a pirate by that name was hanged there, to great fanfare. In 1785 Samuel Ellis bought it, and the island had a permanent name. New York later took title and ceded most of its jurisdiction over the island to the federal government. Shortly thereafter, the United States Army improved the island with a fort, Fort Gibson, and a battery of 20 cannons. The island was, during that whole time, approximately three acres in size.

The federal use of the fort changed when the United States took over immigration duties from the various states in the 1880s. The New York area was a focal point for immigrants, and the federal government determined to open an immigration station on Ellis Island. However, the three-acre island was too small. When it opened the station in 1892, federal fill had enlarged Ellis Island to about six acres. By 1897, the island had been filled up to 14 acres. During the next 40 years, the government created two more islands with fill, and then joined them with each other and with the main island. By 1934, the expanded Ellis Island was roughly 24.5 acres, with a total area some eight times the island’s original size.

During this early period, Ellis Island was part of New York, even though it was much closer to the Garden State than to the Empire State. Indeed, New Jersey conceded as much in a complaint about its boundary with New York filed in the United States Supreme Court in 1829. In 1834, the two states settled on a compact determining their water boundary from the southern tip of Staten Island to the northeast corner of what is now Alpine, NJ. That agreement left Ellis Island in New York, while the boundary generally between the two states was the middle of the Hudson River and New York Bay, far to the east of Ellis Island. So the lands under the waters immediately surrounding Ellis Island were, and still are, in New Jersey.

On April 23, 1993, New Jersey challenged the commonly held notion that Ellis Island is in New York by again filing suit in the United States Supreme Court. As before, it conceded that the site of the original three-acre island is in New York; but it asserted that the 21.5 acres of Upper New York Bay land that the government had filled was on the New Jersey side of the boundary, and consequently under New Jersey’s state jurisdiction. Ellis Island was now really part of two states.

Trial was held before a Special Master for 25 days in the summer of 1996. He considered almost 2000 documents and testimony that ran over 4000 pages. In his final report on March 31, 1997, he basically held in favor of New Jersey, to the great surprise of some New Yorkers. The matter then came before the United States Supreme Court, which published its opinion on May 26, 1998. The Supreme Court held, by a vote of 6 to 3, that the Compact of 1834 gave New York sovereignty over only the original three-acre island. The added filled land, the majority decided, is within the sovereign jurisdiction of New Jersey when federal law does not apply. The resulting boundary cuts through three buildings on Ellis Island and leaves New York’s portion of the island entirely surrounded by the filled land of New Jersey. Ellis Island is the only place in the United States where one state completely surrounds another state on high ground.

New Jersey early on had conceded that the three-acre island was in New York, and New York eventually conceded that New Jersey officials had sufficiently asserted its claims to the filled land after the immigration station closed in 1954. So the fact issue to be tried was narrowed to whether New York had asserted its rights to the whole island in the period from 1890, when the fill began, until the closing in 1954, to overcome New Jersey’s common law rights to govern the filled land.

Crucial to the result was New Jersey’s concession on the three acres. That part of Ellis Island is the location of the Great Hall immigration processing area, where most of the activity on the expanded island took place. Mail delivered to “Ellis Island, NY” was correct for that reason, and did not call into question state jurisdiction over the filled land. Similarly, birth, death, and marriage records also reported “Ellis Island, NY,” but those were recorded where the administrative offices were located, in Manhattan. Voting records as well were from New York, and not New Jersey. Fatally for their point, New York election officials never depicted the expanded island on their voting maps, only the original three-acre Oyster Island, and New York statutes about Ellis Island never specifically referred to the filled area. New York never tried to collect taxes there until 1991, well after the period at issue. Even the immigrants’ certificates of arrival, which uniformly said “Ellis Island, NY,” were of no help to the Empire State, because the New York Immigration District included northern New Jersey.

As a result, the Supreme Court held that New York’s evidence of its jurisdiction over the filled areas of Ellis Island between 1890 and 1954 was “too slight” to support any finding in its favor; there were only “a modest number of sporadic acts” by New York over the 64-year period. On the other hand, New Jersey was relatively active at that same time in asserting its jurisdiction there. The federal Harbor Line Board prepared six surveys of Ellis Island as it was being expanded from 1890 to 1911; each one said they depicted “Ellis Island, New Jersey.” United States Attorney General William Moody agreed that the Compact of 1834 gave New Jersey the lands to be filled for the expansion of the island, and so in 1904 authorized their purchase from New Jersey, not New York. In the 1930s, the government applied to New Jersey, not New York, for a permit to construct a seawall on Ellis Island. Finally, for a time in the late 1940s, New Jersey wage rates, not New York rates, applied there. At other times during the overall period, New York prevailed, but not enough to show a consistent understanding by the federal government in favor of the Empire State.

When the final decree was entered in New Jersey’s favor, it was the first to set a boundary by judicial decree using the Geographic Information System. Nearly 90% of the upland land mass was recognized as being in New Jersey. New York Mayor Rudolph Giuliani reacted to the decision by saying that there must have been “a fix.” But it is hard to see how that could have been, when the only New Jersey native on the Court, Mr. Justice Antonin Scalia, wrote a strong dissent in favor of New York. Later, New Jersey Governor Christine Todd Whitman was so elated that she established an Advisory Commission on the Preservation and Use of Ellis Island and arranged for $2.3 million for the cause. Newly-approved New Jersey Attorney General John Farmer, Jr. chose the island for his swearing-in on July 1, 1999, labeling on his invitations that it would be held on “Ellis Island, New Jersey.” Of course.

William E. Andersen was on the New Jersey team in the Ellis Island litigation. His research provided most of the historical documents in support of the State’s position. He lives in West Windsor.