concurring in the judgment in part and dissenting in part.
The essence of this litigation is a dispute between the State of Florida and one of its citizens over ownership of treasure. The Eleventh Amendment precludes federal courts from entertaining such suits unless the State agrees to waive its Eleventh Amendment immunity. Because it is the State itself which purports to own the controverted treasure, and because the very nature of this suit, as defined in the complaint and recognized by both the District Court and Court of Appeals, is to determine the State’s title to such property, this is not a case subject to the doctrine of Ex parte Young, 209 U. S. 123 (1908). In short, this is a suit against the State of Florida, without its permission. Moreover, were the suit to be characterized as one against only state agents, I would find that contract with the State provided a colorable basis upon which the agents could hold the property.
The Court of Appeals, like the District Court, thought that the jurisdictional issue raised by the State merged with a determination on the merits of the validity of the State’s claim to the property. The appellate court believed that it had “jurisdiction to decide jurisdiction” and could therefore determine who owned the artifacts in order to ascertain whether the suit was, in fact, an action against the State. *703By holding that “[t]he court did not have power ... to adjudicate the State’s interest in the property without the State’s consent,” ante, at 682, the Court properly rejects this novel conception of the Eleventh Amendment.* The appellate court’s approach to the jurisdictional issue is not consistent with our prior cases; it incorrectly assumes that a federal court may adjudicate a State’s right to ownership of specific property within the possession of state officials without the State’s consent. The approach is unsatisfactory because, as Judge Rubin noted in dissent, it “is equivalent to asserting that suits against a state are permitted by the eleventh amendment if the result is that the state loses.” 621 F. 2d 1340, 1351 (CA5 1980). Although disagreeing with the Court of Appeals’ Eleventh Amendment holding, the plurality nevertheless proceeds to conclude that the “State does not have even a colorable claim to the artifacts pursuant to [its] contracts” with respondents, ante, at 694, and that the state officials “have [no] colorable claim to possession of the artifacts.” Ante, at 697. This for all practical purposes adjudicates the State’s title, thus repeating the Eleventh Amendment error of the Court of Appeals.
Justice Stevens’ plurality opinion rests precariously on two transparent fictions. First, it indulges in the fantasy that the enforcement of process by arrest of the res is somehow divorced from the action to determine the State’s claim to the res — a position contradicted by our own most apposite precedents, the two In re New York cases, 256 U. S. 490 (1921), and 256 U. S. 503 (1921). That dubious proposition is parlayed by a second fiction — that Florida’s Eleventh Amendment freedom from suit is meaningfully safeguarded by not formally rejecting the State’s claim to the artifacts *704although federal agents may seize the contested property and federal courts may adjudicate its title. Neither of these novel propositions follows from Ex parte Young, supra. The rule of Ex parte Young is premised on the axiom that state officials cannot evade responsibility when their conduct “comes into conflict with the superior authority of [the] Constitution.” Id., at 159. Today, the plurality dilutes the probative force behind that cornerstone decision by extrapolating it to allow federal courts to decide a property dispute between a State and one of its citizens, without the State’s consent. For these reasons, as explained below, I dissent in part.
I
The Suit Is Against the State
The case is directly traceable to Treasure Salvors’ filing of a motion in District Court for an order commanding the United States Marshal to arrest and take custody of the contested artifacts and to bring them within the jurisdiction of the court. Record 318. The roots of the case, however, rest in the earlier in rem action brought by Treasure Salvors to establish its title to the wreck and its bounty. The District Court held that possession and title rested with Treasure Salvors. Treasure Salvors, Inc. v. Abandoned Sailing Vessel, 408 F. Supp. 907, 911 (SD Fla. 1976). The Court of Appeals affirmed Treasure Salvors’ ownership of all objects within the District Court’s jurisdiction and to those objects outside its territory with respect to the United States. Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F. 2d 330 (CA5 1978) (Treasure Salvors I).
Treasure Salvors’ subsequent request for an arrest warrant was predicated on this decision.1 The warrant was to *705issue because it had already been decided that Treasure Salvors had “sole title and right to possession of the Defendant vessel.” App. 13. Notwithstanding the Court of Appeals’ limitation of its opinion to artifacts within the District Court’s jurisdiction and to rights in the treasure asserted by the United States, Treasure Salvors sought enforcement of the judgment against the State of Florida. It did so on grounds that this Court’s decision in United States v. Florida, 420 U. S. 521 (1975), removed Florida’s right to the artifacts, and that Florida was privy to and bound by Treasure Salvors I.
“Inasmuch as the State of Florida [and its officers] were privy to this litigation, it is clear that [the district court] confirmed to the Plaintiffs’ . . . title to and right to immediate and sole possession of the vessel . . . together ■with all her . . . cargo, wherever the same may be found.” App. 18 (emphasis deleted).
In short, Treasure Salvors requested seizure of the artifacts in order to enforce an earlier judgment against the State. This is reason enough to conclude that the suit, and the accompanying warrant for arrest of the articles, were actions invoking federal judicial power against the State and not merely its agents.
But even if this were not so, subsequent events reveal that the case is one against the State. After the State filed a motion to quash the warrant, Treasure Salvors filed a supplemental complaint requesting that the contract be held void; it also requested that the District Court rule “[t]hat the State has no right, title or interest” in any portions of the Atocha in its possession. Record 371. The District Court then entered an order to show cause addressed directly to the State *706of Florida. App. 63. The State then argued that the Eleventh Amendment barred the suit. After rejecting all of the State’s arguments, the District Court ordered that Treasure Salvors “have full right and title to articles arrested and that they are entitled to possession.” Id,., at 85. The Court of Appeals affirmed this judgment.
I find the inescapable conclusion to be that this suit, as filed, litigated, and decided, was an action to determine the title of the State of Florida to the artifacts.2 A suit of this type is at the heart of the Eleventh Amendment immunity.
The line of cases culminating in Ex parte Young, 209 U. S. 123 (1908), are not to the contrary. In both United States v. Lee, 106 U. S. 196 (1882), and Tindal v. Wesley, 167 U. S. 204 (1897), the suits were against individual agents and did not purport to conclude the rights of the Government. As the Court correctly notes, Tindal made plain that a judgment awarding possession to the plaintiff would not subsequently bind the Government. Here the entire point of the in rem proceeding is to apply the judgment in Treasure Salvors I to erase the State’s claim to the treasure. This is the only basis for issuance of the arrest warrant; it was the relief expressly requested by the respondents, and the relief subsequently granted by the District Court and the Court of Appeals.
My position is supported by the precedents closest to the instant case: the In re New York cases, 256 U. S. 490 (1921), and 256 U. S. 503 (1921). The first In re New York decision arose from an in rem libel against the private owners of tugboats that had been at fault in collisions while chartered and operated by the State. The owners sought to bring in the Superintendent of Public Works who had entered into the *707charters on the State’s behalf. The issue before this Court was whether the State could, without its consent, be impleaded in admiralty process in an action against private parties. The Court held that the “proceedings against which prohibition is here asked,” i. e., the attempt to implead the State, “have no element of a proceeding in rem and are in the nature of an action in personam” against a state officer. The purpose of this distinction was not to suggest that in rem actions could be brought against the State, or even that the original libel was not a true in rem cause, but rather to highlight that impleading of a state official, no less than a direct action against the official, constituted a suit against a state officer in his “official capacity” and might require satisfaction out of the property of New York. 256 U. S., at 501.
The second In re New York decision, a sovereign immunity case, made clear that a State’s immunity extended to admiralty actions in rem.
“The principle so uniformly held to exempt the property of municipal corporations employed for public and governmental purposes from seizure by admiralty process in rem, applies with even greater force to exempt public property of a State used and employed for public and governmental purposes.” 256 U. S., at 511.
The plurality’s reading of In re New York (II) is that an action “otherwise barred as an in personam action against the State — cannot be maintained through seizure of property owned by the State.” Ante, at699.3 Nothing in the language of Justice Pitney’s opinion supports this interpretation. Moreover, the libel brought before the Court in that case was a true in rem action; an action in admiralty to recover damages caused by a ship is a classic in rem action, al*708though after the owners of the vessel are identified the libel often will be amended to include an in personam claim as well. G. Gilmore & C. Black, Law of Admiralty 498 (2d ed. 1975) (Gilmore & Black). Therefore, In re New York (II) is as “true” an in rem action as the instant case.
The grounds of similarity between the cases are clear: in both cases in rem libels were filed and process by arrest was requested; in both suits the State by its Attorney General responded and indicated to the District Court that the property to be arrested was in the possession and ownership of the State, and therefore immune from seizure and attachment. In both cases, the District Court overruled the suggestion and awarded process in rem, authorizing the arrest of the res. When the seizure of the Queen City finally reached this forum, the Court stated that the property was exempt from seizure by admiralty process in rem.4 The plurality’s distinction aside, the cases can be distinguished on but a single relevant point: the fact that ownership of the res is contested here. That, of course, is the grounds on which the Court of *709Appeals decided the case — a resolution which the plurality apparently rejects.
In re New York (I) indicates that the Eleventh Amendment will bar a suit that has the effect of proceeding against a state officer and involving the State’s property. In re New York (II) squarely stands for the proposition that sovereign immunity bars process against a res in the hands of state officers. This is true even though an in rem action strictly proceeds against the vessel, and the owner of the vessel or artifacts is not an indispensable party. Significantly, In re New York (II) did not distinguish between the service of process to arrest the res and the thrust of the libel itself to determine the rights in the vessel. I follow that course in this case, and refuse to sever the attempt to arrest the artifacts from the attempt to decide their ownership.
The In re New York cases are particularly forceful because they reflect the special concern in admiralty that maritime property of the sovereign is not to be seized. This principle dates back to the English5 and has not been significantly al*710tered in this country.6 The In re New York cases are but the most apposite examples of the line of cases concerning in rem actions brought against vessels in which an official of the State, the Federal Government, or a foreign government has asserted ownership of the res. The Court’s consistent interpretation of the respective but related immunity doctrines pertaining to such vessels has been, upon proper presentation that the sovereign entity claims ownership of a res in its possession, to dismiss the suit or modify the judgment accordingly.7
Finally, the allowance of an in rem suit against arguably state-owned maritime property rests on the “personification” theory of the res — that the action runs against the Atocha and not the State of Florida. This distinction between in rem and in personam actions has been decisively rejected. As the fiction of the personality of the ship declined, Gilmore & Black 615, 804-805, in rem actions were given in personam effect, and in personam judgments barred subsequent in rem actions. Id., at 802, 613-614. See, e. g., Burns Bros. v. Central R. Co. of New Jersey, 202 F. 2d 910 (CA2 1953) (L. Hand, J.). In short, under long-established admiralty law, *711arrest of sovereign maritime property is not tolerated, and an in rem suit directed at government property is an action against the State.
II
Holding of the Treasure by State Officials Was Not Ultra Vires
Alternatively, if the arrest of the artifacts was not, without more, a suit against the State, the action was nevertheless against state agents acting within their authority and holding property for the State under a colorable claim of right. It is settled that the Eleventh Amendment bars actions which are in effect against the State, even though the State is not the nominal party. Louisiana v. Jumel, 107 U. S. 711, 719-723, 727-728 (1883).
Leaving aside other possible bases by which the state officials had authority to refuse to surrender possession of the artifacts, I address the salvage contracts entered into between the State and Treasure Salvors. Under the contracts, which were renewed annually, Treasure Salvors was to conduct underwater salvage on Florida lands. By the terms of the contract, Treasure Salvors received 75% of the artifacts recovered. The State was to retain 25% of the representative artifacts. This arrangement was renewed on three occasions, the last contract being entered into on December 3, 1974. It was during that contract’s duration that we decided United States v. Florida, 420 U. S. 531 (1975), which established Florida’s boundaries along lines which placed the Atocha in international waters.
If it were not for this decision, it would be beyond cavil that Florida owned one-fourth of the artifacts pursuant to its ownership of the submerged land on which the Atocha rested as well as the contracts. It is also beyond reasonable dispute that the Eleventh Amendment bars a federal court from deciding the rights and obligations of a State in a contract unless the State consents. Larson v. Domestic & Foreign *712Commerce Corp., 337 U. S. 682 (1949). The plurality does not take issue with this proposition.8
The plurality treats this as a different case for two reasons. The first is that the State has never, in so many words, argued that the contracts conferred upon the State a right of ownership in the artifacts. Ante, at 693. While this may be true in the sense that Florida believed that it owned the artifacts even aside from the contracts, it is not true that Florida has not asserted that the contracts create an independent right to the treasure. Florida has repeatedly and expressly made precisely such a claim.9
The plurality’s second argument is that the “State does not have even a colorable claim to the artifacts pursuant to these contracts.” Ante, at 694. I disagree with this conclusion. The wording of the contract is reasonably interpretable as providing for a division of the recovered treasure. The intention of the parties upon the making of the contract, of course, governs the interpretation of the instrument. If United States v. Florida, supra, had placed the Atocha within Florida waters, it could not reasonably be argued that the contract did not constitute a valid basis for the State’s *713claim to 25% of the artifacts. Both Treasure Salvors and the State entered into the contracts on the assumption that the Atocha rested in Florida waters. As it happened, the Florida decision upset that mutual assumption. This does not, however, inexorably mean that the contracts are so invalid as to render possession of the artifacts ultra vires.10 Admiralty law may provide that such a mistake is not grounds for rescission of fully performed contracts in these circumstances.11 The plurality’s contention that the language of the contracts does not purport to transfer artifacts from Treasure Salvors to the State utterly ignores the concept of mistake. The notion of mistake would be read out of contract law if courts expected a contract, written under mistaken assumptions, to read as if the mistake had not occurred.
Whether the contracts are ultimately valid is beside the point. The existence of a colorable contractual claim to the artifacts, the presence of statutory authority for the State to enter into the contracts, and the ability to raise a mistake-of-law defense not rejectible on its face, is all that need be shown to indicate that possession of the artifacts by the state officials was not ultra vires. Although it would be too much *714to suggest that our Eleventh Amendment is crystal clear in all respects, this is, at least, the teaching of our most recent cases.
Larson v. Domestic & Foreign Commerce Corp., supra, is most directly apposite. There a private corporation brought suit in Federal District Court against the Administrator of the War Assets Administration, an agency of the United States Government, in his official capacity. The claim was that the Administration had sold certain surplus coal to the plaintiff, but had refused to deliver it and had made a new contract to sell it to others. A declaration was sought that the first contract was valid, the second contract invalid, and appropriate injunctive relief was requested. The Court held that the suit was against the United States and the District Court was therefore without jurisdiction to entertain it. The Court’s decision rested on the Administrator’s statutory authority to enter a binding contract to sell coal, and the absence of a claim that the failure to deliver the coal constituted a taking of private property. The Court refused to pass upon the validity of the contract itself, i. e., whether the initial contract with the plaintiff was breached.12
Larson established that where the officer’s actions are limited by statute, actions beyond those limitations are to be considered individual and not sovereign actions. “The officer is not doing the business which the sovereign has empowered him to do ... . His actions are ultra vires his authority *715and therefore may be made the object of specific relief.” 337 U. S., at 689. Similarly, unconstitutional actions by state officers could not be considered the work of the sovereign and were not protected by the shield of sovereign immunity. The Larson Court rejected, however, a third proposed category of official actions amenable to suit.13 It was urged upon the Court that if an “officer . . . wrongly takes or holds spe*716cific property to which the plaintiff has title,” then his action is illegal and the officer may be sued. The Court found the theory erroneous:
“The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet that requirement. True, it establishes a wrong to the plaintiff. But it does not establish that the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign.” Id., at 693.
This is a Larson case. Florida entered into the contract pursuant to an indisputably valid state statute, Fla. Stat. §267.061(l)(b) (1974), providing title to treasure trove abandoned on state-owned submerged lands. The Court relies heavily, as it must, on the subsequent determination that the wreck of the Atocha was in international waters. This, of course, was not settled law at the time the contracts were entered into and executed. Before concluding that the state officials’ exercise of rights under the contracts was ultra vires, it is necessary to reach the merits of the contract, and dispose of the mistake-of-law contention. Similarly, the scattershot reasoning of the District Court in refusing to honor the contract— characterization of the mistake as one of fact, treatment of the contract as void for coercion and lack of consideration— constitutes an adjudication of the merits of the contracts. At the time the contracts were entered into and executed they were not ultra vires or otherwise so plainly invalid as not to offer a colorable basis for possession of the artifacts.
It is significant that the analysis pursued by the plurality in this respect is little different from that of the Fifth Circuit in deciding the merits in order to ascertain jurisdiction over the matter. As indicated earlier, the plurality performs the task under a different rubric, but the result is equally objectionable. A colorable basis for the exercise of authority by state officials may not ultimately be a valid one, but it does serve to invoke the Eleventh Amendment. That is the lesson of Larson and we should adhere to it.
*717Ill
The plurality begins by stating that “[stripped of its procedural complexities and factual glamor, this case presents a narrow legal question.” Ante, at 683. Be that as it may, the answer supplied by the plurality is anything but narrow. If the plurality means all that it says today, the consequences will be unfortunate. Given that all property of the State must be held by its officers, and assuming a jurisdictional basis, there is no item within state possession whose ownership cannot be made the subject of federal litigation by the expedient of arrest or attachment. The State must then defend on the merits: it must persuade a federal court that its officers were justified in holding the controverted property. We see today that this inquiry will be tantamount to deciding the question of title itself. Moreover, the State’s immunity from suit is stripped away on land as well as sea: the plurality notes that the question presented would not be any different if the State merely resisted an attachment of property. Ibid.
The plurality hardly conceals its view of Florida’s claim to the artifacts or the equities involved in this litigation. Yet the Eleventh Amendment teaches that a federal court has no right to offer its opinion on a local dispute between a State and its citizens unless the State consents. In sum, the disposition of this case can only be explained by “procedural complexities and factual glamor.” If so, the decision has earned a fitting sobriquet: aberration.
I therefore concur in the judgment of the Court only insofar as it reverses the Court of Appeals’ determination of the State’s ownership of the artifacts. On this point, all Members of the Court, except Justice Brennan, are in agreement.
“[T]he plaintiffs . . . pursuant to the Final Judgment rendered by this Court February 19, 1976 and the Appellate Opinion rendered by the United States Court of Appeals for the Fifth Circuit No. 76-2151, March *70513, 1978, move this Court for an Order commanding the United States Marshal to arrest and take custody of those portions of the Plaintiff’s vessel now being held by L. Ross Morrell or James McBeth or being held under their custody, care or control.” App. 11.
The fact that the District Court did not issue its arrest warrant in response to Treasure Salvors’ amended complaint is of little significance. It is the complaint which defines the nature of an action, and once accepted, an amended complaint replaces the original. Moreover, the adjudication of title either reflects that the ownership claim followed from the original complaint or constituted action upon the amended complaint.
The plurality confuses the matter further by treating the cases as bearing on the question of whether a burden is imposed on the state treasury. The In re New York cases pertain instead to the initial issue of whether the action is against the State.
In re New York (II) was decided on straight sovereign immunity grounds: “[T]he record — aside from whether a suit in admiralty brought by private parties through process in rem against property owned by a State is not in effect a suit against the State, barred by the general principle applied in Ex parte New York, No. 1, No. 25, Original — presents the question whether the proceeding can be based upon the seizure of property owned by a State and used and employed solely for its governmental uses and purposes.” The Court went on to decide the vessel was immune from admiralty process, based upon “the law of nations” and “general grounds of comity and policy.” 256 U. S., at 510.
In re New York (II)’s resolution on sovereign immunity grounds has several implications. First, as with other sovereign immunity decisions, it is direct support for determining what constitutes a suit against the State. Ante, at 686, n. 21. Cf. Tindal v. Wesley, 167 U. S. 204, 213 (1897). Second, it undercuts the plurality’s analysis that the case merely stops roundabout circumvention of In re New York (I) through “first attaching property that belonged to the State and then proceeding in rem." Ante, at 699. As the above quoted passage indicates, the In re New York (II) Court did not need to go so far in order to find the suit barred.
Under English law, no warrant for arrest will issue against any vessel in the actual service of a recognized foreign government. Significantly, this is so even if the suit itself is not barred. See, e. g., The Messicano, 32 T. L. R. 519 (1916). Where plaintiff sues in rem for possession “the writ will be dismissed, if a foreign recognized government claims the right to possession and is in the actual possession of the vessel, regardless of whether possession was rightfully or wrongfully obtained.” Riesenfeld, Sovereign Immunity of Foreign Vessels in Anglo-American Law: The Evolution of a Legal Doctrine, 25 Minn. L. Rev. 1, 25 (1940). In The Parlement Beige, 5 P. D. 197, 220 (1880), the “leading authority” in England, it was held that “[i]f the remedy sought by an action in rem against public property is, as we think it is, an indirect mode of exercising the authority of the Court against the owner of the property, then the attempt to exercise such an authority is an attempt inconsistent with the independence and equality of the state which is represented by such owner.” Moreover, after a ship was declared by the foreign sovereign “to be in his possession as sovereign and to be a public vessel of the state,” it was “very difficult to say that any Court can inquire by contentious testimony whether that declaration is or is not correct.” Id., at 219.
For early cases, see United States v. Peters, 3 Dall. 121 (1795); The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812); L'Invincible, 1 Wheat. 238 (1816); The Santissima Trinidad, 7 Wheat. 283 (1822). In The Siren, 7 Wall. 152 (1869), the Court allowed a claim against the proceeds of the vessel when sold, but stressed that no claim could be enforced while the Government owned the vessel. In The Western Maid, 257 U. S. 419 (1922), the Court, per Justice Holmes, went further and refused to allow a claim against a Government-owned vessel as enforceable either during Government ownership or thereafter. Shortly thereafter, sovereign immunity was expanded to embrace ships engaged solely in commerce. Berizzi Bros. Co. v. S.S. Pesaro, 271 U. S. 562 (1926).
See Gilmore & Black 606-613. Only when a vessel is not in the sovereign’s possession, is there controversy over the proper means by which the foreign government may assert its ownership. See Compania Espanola de Navegacion Maritima v. The Navemar, 303 U. S. 68 (1938).
“In Larson . . . this Court held that the actions of a federal official in withholding the delivery of goods pursuant to his interpretation of a disputed provision of a contract constituted at most a tortious deprivation of property. . . . Actions of the Government official pursuant to legitimate contractual authority were neither ultra vires nor unconstitutional.” Ante, at 693.
“At issue in the present case is both a contract and property right of the State of Florida to the artifacts previously in its possession . . . .” Brief for Petitioner 32; “The issue on the merits was whether the State had property rights to artifacts in its Archives — that is, whether the contract to which the state was a party was valid.” Id., at 60. “The State of Florida has not claimed a lien on the artifacts; it has claimed ownership — through fully executed contracts.” Reply Brief for Petitioner 16-17. “The contract alone determined the rights and obligations of the contracting parties and was in no way affected by United States v. Florida.” State’s Motion to Quash Warrant for Arrest in Rem, App. 44.
The plurality also suggests that the contracts “were predicated entirely on a state statute that on its face is inapplicable in this case.” Ante, at 696. This no more than restates the plurality’s characterization of the contracts. But it does highlight that the contracts’ validity is called into question only by a mistaken assumption of law — the statute’s “inapplica[bility]” after United States v. Florida, 420 U. S. 531 (1975).
The inherent uncertainty in contracts for salvage has led admiralty courts to find few reasons that would justify reformation of a contract. See The Elfrida, 172 U. S. 186, 196 (1898) (“We do not think that a salvage contract should be sustained as an exception to the general rule, but rather that it should, prima facie, be enforced, and that it belongs to the defendant to establish the exception”). Gilmore & Black 582 (“Whether the gamble turns well or badly for the salvor, the ‘no cure no pay’ contract is everywhere recognized as enforceable, absent such invalidating causes as fraud and duress”).
The plurality’s attempt to distinguish Larson is puzzling. It notes that while the plaintiff in Larson asserted a right to the property pursuant to the very contract it contended the Government official had breached, here Treasure Salvors claims ownership on grounds entirely independent of the contracts. This is a distinction without meaning: it is the State’s claim to the property which is significant; the basis for Treasure Salvors’ claim is quite beside the point. The relevant comparison is that the federal official in Larson was arguably without authority to enter a contract to sell coal that he had already sold just as the State was arguably without authority to enter a contract respecting salvage on lands outside its waters.
The plurality acknowledges that Larson clarified the understanding of earlier cases such as Tindal v. Wesley, 167 U. S. 204 (1897), and United States v. Lee, 106 U. S. 196 (1882). Dicta in both Tindal and Lee are cited by the Court to suggest that a federal court may adjudicate the validity of a title in order to determine whether the case is a suit against the State. It is precisely this aspect of the cases that Larson “clarified.” A court may go only so far as to ascertain whether an official has a colorable basis for his action — to go farther is to, in effect, try the case on the jurisdictional issue and “is equivalent to asserting that suits against the state are permitted by the eleventh amendment if the result is that the state loses.” 621 F. 2d 1340, 1351 (CA5 1980) (Rubin, J., dissenting).
The inapplicability of United States v. Lee was made clear in Malone v. Bowdoin, 369 U. S. 643 (1962), a case involving an attempt to eject a Forest Service Officer from land occupied by him solely in his official capacity under a claim of title in the United States. The plaintiffs argued they were the rightful owners of the land. The Court held that the suit was an impermissible action against the United States, and stated:
“While not expressly overruling United States v. Lee, supra, the Court in Larson limited that decision in such a way as to make it inapplicable to the case before us. Pointing out that at the time of the Lee decision there was no remedy by which the plaintiff could have recovered compensation for the taking of his land, the Court interpreted Lee as simply ‘a specific application of the constitutional exception to the doctrine of sovereign immunity.’ 337 U. S. at 696. So construed, the Lee case has continuing validity only ‘where there is a claim that the holding constitutes an unconstitutional taking of property without just compensation.’ Id., at 697.” Id., at 647-648.
An in rem admiralty action, like an ejectment suit, is an action to determine title to property, and, here, like in Bowdoin, there is no claim of an unconstitutional taking without adequate compensation. Indeed, Treasure Salvors may be able to bring an in personam action in state court to determine ownership of the treasure.