JURISDICTION OVER FEDERAL
AREAS WITHIN THE STATES
REPORT OF THE
INTERDEPARTMENTAL COMMITTEE
FOR THE STUDY OF
JURISDICTION OVER FEDERAL AREAS
WITHIN THE STATES
PART I
The Facts and Committee Recommendations
Submitted to the Attorney General and transmitted to the President
April 1956
Reprinted by Constitutional Research Associates
P.O. Box 550
So. Holland, Illinois 06473
The White House,
Washington, April 27, 1956
DEAR MR. ATTORNEY GENERAL: I am herewith returning to you, so
that it may be published and receive the widest possible distribution
among those interested in Federal real property matters, part I of the
Report of the Interdepartmental Committee for Study of Jurisdiction
over Federal Areas within the States. I am impressed by the well-
planned effort which went into the study underlying this report and by
the soundness of the recommendations which the report makes.
It would seem particularly desirable that the report be brought
to the attention of the Federal administrators of real properties, who
should be guided by it in matters related to legislative jurisdiction,
and to the President of the Senate, the Speaker of the House of
Representatives, and appropriate State officials, for their
consideration of necessary legislation. I hope that you will see to
this. I hope, also, that the General services Administration will
establish as soon as may be possible a central source of information
concerning the legislative jurisdictional status of Federal properties
and that agency, with the Bureau of the Budget and the Department of
Justice, will maintain a continuing and concerted interest in the
progress made by all Federal agencies in adjusting the status of their
properties in conformity with the recommendations made in the report.
The members of the committee and the other officials, Federal and
State, who participated in the study, have my appreciation and
congratulations on this report. I hope they will continue their good
efforts so that the text of the law on the subject of legislative
jurisdiction which is planned as a supplement will issue as soon as
possible.
Sincerely,
DWIGHT D. EISENHOWER.
The Honorable Herbert Brownell, Jr.,
The Attorney General, Washington, D.C.
(III)
LETTER OF TRANSMITTAL
Office of the Attorney General,
Washington, D.C., April 27,1956.
DEAR MR. PRESIDENT: On my recommendation, and with your
approval, there was organized on December 15, 1954, an
interdepartmental committee to study problems of jurisdiction related
to federally owned property within the States.
This Committee has labored diligently during the ensuing period
and now has produced a factual report (part I), together with
recommendations for changes in Federal agency practices, and in
Federal and State laws, designed to eliminate existing problems
arising out of Federal-State Jurisdictional situations.
Subject to your approval, I shall bring the report and
recommendations to the attention of the President of the Senate and
the Speaker of the House of Representatives for the purpose of
bringing about consideration of the Federal legislative proposals
involved to the attention of State officials through established
channels for consideration of the State legislative proposals
involved, and to the attention of heads of Federal Departments and
agencies, for their guidance in matters relating to this subject.
Part II of the Committee's report is now in course of preparation
and will be completed in the next several months. It will be a text
which will discuss the law applicable to Federal jurisdiction over
land owned in the States. Immediately upon completion of the legal
text it will be sent to you. The Committee is of the view, in which I
concur, that the two parts of the report are sufficiently different in
content and purpose that they may issue separately.
Respectfully,
Herbert Brownell, Jr.,
Attorney General
THE PRESIDENT,
THE WHITE HOUSE.
(IV)
LETTER OF SUBMISSION
INTERDEPARTMENTAL COMMITTEE FOR THE STUDY OF
JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES,
APRIL 25, 1956
DEAR MR. ATTORNEY GENERAL: The Committee has completed its
studies of the factual aspects of legislative jurisdiction over
Federal areas within the several States, and of the Federal and State
laws relating thereto, and herewith submits for your consideration and
for transmission to the President its report subtitled "Part I. the
Facts and Committee Recommendations."
Part II of the Committee's report will be completed within the
next several months. It will be a text of the law on the subject of
legislative jurisdiction, particularly covering judicial decisions and
rulings of legal officers of administrative agencies concerning the
subject. It is the view of the Committee that the two mentioned parts
of the report are sufficiently different in their contents and
purposes that they may issue separately.
Respectfully submitted,
PERRY W. MORTON,
Assistant Attorney General (Chairman).
MANSFIELD D. SPRAGUE,
General Counsel,
General Services Administration (Secretary).
MAXWELL H. ELLIOTT,
General Counsel,
General Services Administration (Secretary).
ARTHUR B. FOCKE,
Legal Adviser, Bureau of the Budget.
J. REUEL ARMSTRONG,
Solicitor, Department of the Interior.
ROBERT L. FARRINGTON,
General Counsel, Department of Agriculture.
PARKE M. BANTA,
General Counsel,
Department of Health, Education, and Welfare.
EDWARD E. ODOM,
Retired as General Counsel,
Veterans' Administration.
(V)
PREFACE
The Interdepartmental Committee was formed on December 15, 1954,
on the recommendation of the Attorney General, approved by the
President and the Cabinet, that a study be undertaken with a view
toward resolving problems arising out of the jurisdictional status of
federally owned areas within the several States, and that in the first
instance this study by conducted by a committee of representatives of
eight certain departments and agencies of the Federal Government which
have a principal interest in such problems. The Bureau of the Budget,
the Departments of Defense, Justice, Interior, Agriculture, and
Health, Education, and Welfare, the General Services Administration,
and the Veterans' Administration are directly represented on the
Committee, the Department of Justice through the Assistant Attorney
General in charge of the Lands Division of that Department, and each
of the other agencies through its General Counsel, Solicitor, or Legal
Adviser. The Committee staff was assembled by detail, for varying
periods, of personnel from the member agencies.
Twenty-five other agencies of the Federal Government furnished to
the Committee information concerning their properties and concerning
problems relating to legislative jurisdiction, without which
information the study would not have been possible. The agencies,
other than those represented on the Committee, which participated in
this manner are:
Department of State
Department of the Treasury
Post Office Department
Department of Commerce
Department of Labor
Arlington Memorial Amphitheater Commission
Atomic Energy Commission
Central Intelligence Agency
Civil Aeronautics Board
Farm Credit Administration
Federal Civil Defense Administration
Federal Communications Commission
Federal Power Commission
General Accounting Office
(VII)
VIII
Housing and Home Finance Agency
International Boundary and Water Commission, United States and
Mexico
Library of Congress
National Advisory Committee for Aeronautic
Office of Defense Mobilization
Railroad Retirement Board
Rubber Producing Facilities Disposal Commission
Saint Lawrence Seaway Development Corporation
Small Business Administration
Tennessee Valley Authority
United States Information Agency
Acknowledgment is gratefully made by the Interdepartmental
Committee of the cooperation and assistance rendered in this study by
the National Association of Attorneys General and its presidents
during the period of the study, C. William O'Neill of Ohio (1954-55),
and John Ben Seaport of Texas (1955-56), by Herbert L. Wiltsee of the
association's secretariat, and by the association's members, the
attorneys general of the several States, who have very generously
contributed information and advice in connection with the study in
accordance with the following resolution of the association:
Whereas the matter of legislative jurisdiction over Federal areas
within the States has become the subject of extensive examination by
an interdepartmental committee within the executive branch of the
Federal establishment, by order of the President of the United States;
and
Whereas this matter is of interest to the several States, within
whose borders an aggregate of more than 20 percent of the total land
area is now owned by the Federal Government, and the effects of this
ownership have resulted in an extremely diverse pattern of
jurisdictional status and attendant questions as to the respective
Federal and State governmental responsibilities; and
Whereas this interdepartmental committee, under the chairmanship
of United States Assistant Attorney General Perry W. Morton, and with
the approval of the executive committee of this association, has
requested the attorneys general of the several States to cooperate in
the assembling of pertinent information and legal research; now
therefore be it
Resolved by the 49th annual meeting of the National Association
of Attorneys General that this association expresses its interest in
the survey thus being undertake, and the association urges all of its
members to cooperate as completely and expeditiously as possible in
providing the interdepartmental committee with needed information; and
be it further
Resolved, That the interdepartmental committee is requested to
discuss its findings with the several attorneys general with the view
to obtaining as wide concurrence as possible in the preliminary and
final conclusions which may be reported by the committee.
- September 1955
IX
STATE ATTORNEYS GENERAL
John M. Patterson, Alabama Harvey Dickerson, Nevada
Robert Morrison, Arizona Louis C. Wyman, New Hampshire
T.J. Gentry, Arkansas Grover C. Richman, New Jersey
Edmund G. Brown, California Richard H. Robinson, New Mexico
Duke W. Dunbar, Colorado Jacob K. Javits, New York
John J. Bracken, Connecticut Wm. B. Rodman, North Carolina
Joseph Donald Craven, Delaware Leslie R. Bergum, North Dakota
Richard W. Ervin, Florida C. William O'Neill, Ohio
Eugene Cook, Georgia Mac Q. Williamson, Oklahoma
Graydon W. Smith, Idaho Robert Y. Thornton, Oregon
Harold R. Fatzer, Kansas Phil Saunders, South Dakota
J. D. Buckman, Jr., Kentucky George F. McCanless, Tennessee
Fred S. LeBlanc, Louisiana Allison B. Humphreys (Solicitor
Frank F. Harding, Maine General, Tennessee)
C. Ferdinand Sybert, Maryland John Ben Sheppard, Texas
George Fingold, Massachusetts Richard Callister, Utah
Thomas M. Kavanagh, Michigan Robert T. Stafford, Vermont
Miles Lord, Minnesota J. Lindsay Almond, Jr., Virginia
J. P. Coleman, Mississippi Don Eastvoid, Washington
John M. Dalton, Missouri John G. Fox, West Virginia
Arnold Olsen, Montana Vernon W. Thomson, Wisconsin
Charence S. Beck, Nebraska George F. Guy, Wyoming
The Interdepartmental Committee also wishes to acknowledge
assistance contributed by the Council of State Governments, and by
Charles F. Conlon, Executive Secretary of the National Association of
Tax Administrators.
CONTENTS
Page
Committee and staff membership.................................. II
President's letter of approval.................................. III
Attorney General's letter of transmittal........................ IV
Committee's letter of submission................................ VII
Preface......................................................... VII
CHAPTER I
Outline of study................................................ 1
CHAPTER II
History and development of Federal legislative jurisdiction:
Origin of article I, section 8, clause 17, of the Constitution. 7
Early practice concerning acquisition of legislative jurisdiction 7
Acquisition of exclusive jurisdiction made compulsory........ 8
State inroads upon acquisition of exclusive jurisdiction..... 9
Retrocession by the Federal Government....................... 10
Exclusive jurisdiction requirement terminated................ 10
Subsequent developments...................................... 10
CHAPTER III
Definitions--Categories of legislative jurisdiction:
Exclusive legislative jurisdiction.......................... 13
Concurrent legislative jurisdiction......................... 14
Partial legislative jurisdiction............................ 14
Proprietorial interest only................................. 14
CHAPTER IV
Basic characteristic of the several categories of legislative
jurisdiction:
Effect of varying statuses................................. 15
Exclusive legislative jurisdiction......................... 15
Concurrent legislative jurisdiction........................ 19
Partial legislative jurisdiction........................... 20
Proprietorial interest only................................ 21
CHAPTER V
Laws and problems of States related to legislative jurisdiction:
Use of material from state sources......................... 23
Provisions of State constitutions and statutes relating to
jurisdiction.......................................... 23
Expressions by State attorneys general respecting Federal
exercise of jurisdiction.............................. 24
Difficulty of determining jurisdictional status of Federal
areas................................................. 25
Taxing problems............................................ 26
Other problems............................................. 27
Summary.................................................... 27
(XI)
XII
CHAPTER VI
Jurisdictional preferences of Federal agencies: Page
Basic groupings of jurisdictional preferences............... 33
Agencies preferring exclusive or partial jurisdiction....... 33
Agencies preferring concurrent jurisdiction................. 34
Agencies preferring a proprietorial interest only........... 34
Lands held in other than the preferred status............... 35
Difficulty of obtaining information concerning jurisdictional
statue................................................. 36
CHAPTER VII
Analysis of Federal agency preferences:
A. General: Determinations concerning jurisdictional needs.. 39
B. Views of agencies desiring exclusive or partial jurisdiction:
State interference with Federal functions.............. 39
Direct interference.................................... 40
Indirect interference.................................. 43
Security............................................... 46
Uniformity of administration........................... 48
Miscellaneous.......................................... 48
C. Problems connect with exclusive (and certain partial)
jurisdiction:
State services generally............................... 49
Fire protection........................................ 50
Refuse and garbage collection and similar services..... 51
Law enforcement........................................ 52
Notaries public and coroners........................... 53
Personal rights and privileges generally............... 53
Voting................................................. 54
Education.............................................. 55
Miscellaneous rights and privileges.................... 56
Benefits dependent on domicile......................... 57
D. Summary as to exclusive and partial jurisdiction......... 58
E. Views of agencies preferring concurrent jurisdiction
Agencies preferring such jurisdiction.................. 59
Advantages and disadvantages........................... 60
General Services Administration........................ 60
Department of Health, Education, and Welfare........... 61
Department of the Navy................................. 61
Department of Justice (Bureau of Prisons).............. 62
Department of Commerce (Bureau of Public Roads)........ 62
Department of the Interior............................. 63
F. Views of agencies desiring a proprietorial interest only:
Federal lands largely in proprietorial interest status. 64
Agencies preferring proprietorial interest............. 64
Characteristics of proprietorial interest status....... 65
Experience of Atomic Energy Commission................. 65
Experience of other agencies........................... 66
Summary as to proprietorial interest status............ 66
XIII
CHAPTER VIII
Conclusions and recommendations:
General observations....................................... 69
Principal Committee conclusions............................ 70
Requirement for adjustments in jurisdictional status....... 70
Retrocession of unnecessary Federal jurisdiction........... 71
Acceptance by States of relinquished jurisdiction.......... 72
Rule-making and enforcement authority...................... 73
Jurisdiction of United states commissioners................ 75
Miscellaneous Federal legislation.......................... 76
State legislation.......................................... 76
Uniform State cession and acceptance statute............... 77
Summary.................................................... 79
Appendix A
Summary of Federal landholding agencies' data related to jurisdiction:
Department of the Treasury................................. 82
Department of Defense:
a. Department of the Army............................. 84
b. Department of the Navy............................. 89
c. Department of the Air Force........................ 94
Department of Justice...................................... 96
Department of the Interior................................. 98
Department of Agriculture.................................. 101
Department of Commerce..................................... 103
Department of Health, Education, and Welfare............... 105
Atomic Energy Commission................................... 107
Central Intelligence Agency................................ 108
Federal Communications Commission.......................... 109
General Services Administration............................ 110
Housing and Home Finance Agency............................ 114
International Boundary and Water Commission, United States
and Mexico............................................... 115
Tennessee Valley Authority................................. 116
United States Information Agency........................... 117
Veterans' Administration................................... 117
Miscellaneous agencies..................................... 120
Appendix B
Texts of principal State and Federal constitutional provisions and
statutes related to jurisdiction in effect as of December 31, 1955:
Part A. Sate constitutional provisions and statutes:[1]
Alabama............................................... 127
Arizona............................................... 128
Arkansas.............................................. 129
California............................................ 131
Colorado.............................................. 135
Connecticut........................................... 136
[1] An analysis of State constitutional provisions and statutes in
table form, together with notes which give more detailed explanations,
has been prepared, and these are included on pp. 28-32 of part I of
the Committee report.
XIV
Page
Texts of principal State and Federal constitutional provisions
and statutes related to jurisdiction in effect as of December 31,
1955-- Continued
Part A. State constitutional provisions and statutes-- Continued
Delaware.............................................. 137
Florida............................................... 138
Georgia............................................... 140
Idaho................................................. 142
Illinois.............................................. 143
Indiana............................................... 144
Iowa.................................................. 148
Kansas................................................ 149
Kentucky.............................................. 151
Louisiana............................................. 152
Maine................................................. 152
Maryland.............................................. 155
Massachusetts......................................... 161
Michigan.............................................. 162
Minnesota............................................. 164
Mississippi........................................... 166
Missouri.............................................. 170
Montana............................................... 171
Nebraska.............................................. 173
Nevada................................................ 174
New Hampshire......................................... 178
New Jersey............................................ 179
New Mexico............................................ 179
New York.............................................. 181
North Carolina........................................ 186
North Dakota.......................................... 189
Ohio.................................................. 190
Oklahoma.............................................. 191
Oregon................................................ 192
Pennsylvania.......................................... 193
Rhode Island.......................................... 194
South Carolina........................................ 196
South Dakota.......................................... 200
Tennessee............................................. 201
Texas................................................. 204
Utah.................................................. 210
Vermont............................................... 210
Virginia.............................................. 211
Washington............................................ 218
West Virginia......................................... 221
Wisconsin............................................. 222
Wyoming............................................... 224
General statutes granting consent of States to purchase of
lands under the Migratory Bird Conservation Act....... 225
State statutes giving consent of States to purchase of lands
under Weeks Forestry Act of March 1, 1911, as amended. 227
XV
Page
Texts of principal State and Federal constitutional provisions and
statutes related to jurisdiction in effect as of December 31, 1955--
Continued
Part B. Federal constitutional provisions as statutes of general
effect relating to the acquisition and exercise of legislative
jurisdiction by the United States:
Constitution of the Unite States: Portions of article I, section
8, clause 17, and article IV, section 3, clause 2........ 231
Statutes relating to the acquisition of legislative jurisdiction
by the United States:
Portion of the act of July 30, 1821: Assent to purchase of
lands for forts, magazines, etc..................... 231
Portion of the act of July 1, 1870: Jurisdiction of the
United States over national cemeteries.............. 231
Portion of the act of March 3, 1821: Necessity for ces-
sion by States of jurisdiction over lighthouse sites. 232
Act of March 2, 1795: Sufficiency of cession with
reservation of right to serve process............... 232
Portions of section 355 of the Revised Statutes, as
amended: Procedure by which the United States obtains
jurisdiction over acquired lands...................... 232
Statutes preserving jurisdiction of States over certain Federal
areas and civil and political rights of inhabitants thereof:
Portion of the act of August 21, 1935: States not to be
deprived of jurisdiction over historic sites, etc... 233
Portion of Weeks Forestry Act, as amended: States shall
not lose jurisdiction over national forests......... 234
Portion of the Migratory Bird Conservation Act:
Jurisdiction of States over persons on acquired areas
not affected
Portion of the Federal Power Act: Act not
intended to interfere with State laws relating to
water............................................... 235
Portion of the act of June 29, 1936, as amended: Civil
rights under local law preserved on low-cost or slum-
clearance projects................................. 235
Portion of United States Housing Act of 1937, as amended:
Acquisition of low-rent housing projects not to deprive
States of jurisdiction or impair inhabitants' civil
rights............................................ 235
Portions of act of October 14, 1949, as amended: Acquisi-
tion of national defense housing not to deprive States
of jurisdiction or impair States of jurisdiction or impair
inhabitants' civil rights.......................... 236
Portions of Defense Housing and Community Facilities and
Services Act of 1951: Acquisition of defense or military
housing not to deprive States of jurisdiction or impair
inhabitants' civil rights.......................... 237
Portions of the Reclamation Law: Act not intended to in-
terfere with State laws relating to water......... 237
Statutes extending certain State legislation to Federal areas:
Lea Act (portion of act of July 30, 1947): Taxation of motor
fuel sold on military or other reservations......... 238
Buck Act (portion of act of July 30, 1947): Sales or use
taxes on Federal areas.............................. 238
XVI
Page
Texts of principal State and Federal constitutional provisions and
statutes related to jurisdiction in effect as of December 31, 1955--
Continued
Part B. Federal constitutional provisions and statutes, etc. --
Continued.
Statutes extending certain State legislation, etc.--Continued
Portion of the Public Salary Tax Act of 1939:
Consent of United States to State taxation of
compensation of Federal employees................... 240
Act of July 17, 1952: Withholding of State income taxes
of Federal employees by Federal agencies............. 240
Potion of the Immigration and Nationality Act:
Jurisdiction over criminal offenses occurring on
immigrant stations extended to States and local
officers............................................. 241
Portions of the act of August 5, 1947: Taxation by
States of lessee's interest in Government property
leased by the Secretaries of the Army or the Navy.... 241
Act of February 1, 1928: Application of State laws to
action for death or personal injury within national
parks, etc........................................... 242
Portions of the act of June 25, 1948, as amended,
Assimilative Crimes Act: Laws of Sates adopted for
areas within Federal jurisdiction.................... 242
Portions of the Internal Revenue Code: Federal
instrumentalities and employees required to
contribute to State unemployment fund................ 243
Act of June 25, 1936: State workmen's compensation laws
extended to Federal buildings and works.............. 244
Portions of the act of October 14, 1940, as amended:
National defense housing to conform in location and
design to local tradition............................ 244
Portions of Defense Housing and Community Facilities
and Services Act of 1951: Housing or community
facilities shall conform to State and local health
and sanitation laws and building codes............... 245
Portion of the Outer Continental Shelf Lands Act: Laws
of adjacent State, except tax laws, declared to be
Federal law for Continental Shelf.................... 246
Statutes granting easements, rights-of-way and roads over
Federal lands and ceding jurisdiction:
Act of May 31, 1947: Grant of easements over Federal
lands by Administrator of Veterans' Affairs........ 247
Act of May 9, 1941: Authority of Attorney General to
grant easements.................................... 247
Portion of the War Department Civil Appropriation Act,
1942, as amended: Conveyance to State or municipality
of approach road to national cemetery................ 247
Miscellaneous Federal statutes:
Portion of the act of June 25, 1948, as amended: United
States commissioners authorized to try persons
charged with petty offenses.......................... 248
Portion of the act of June 1, 1948, as amended:
Appointment of guards of General Services
Administration as special policemen.................. 248
JURISDICTION OVER FEDERAL AREAS WITHIN
THE STATES
CHAPTER I
OUTLINE OF STUDY
The instant study was occasioned by the denial to a group of
children of Federal employees residing on the grounds of a Veterans'
Administration hospital of the opportunity of attending public schools
in the town in which the hospital was located. An administrative
decision against the children was affirmed by local courts, finally
including the supreme court of the State. The decisions were based on
the ground that residents of the area on which the hospital was
located were not residents of the State since "exclusive legislative
jurisdiction" over such area had been ceded by the State to the
Federal Government, and therefore they were not entitled to privileges
of State residency.
In an ensuing study of the State supreme court decision with a view
toward applying to the Supreme Court of the United States for a writ
of certiorari, the Department of Justice ascertained that State laws
and practices relating to the subject of Federal legislative
jurisdiction are very different in different States, that practices of
Federal agencies with respect to the same subject very extremely from
agency to agency without apparent basis, and that the Federal
Government, the States, residents of Federal areas, and others, are
all suffering serious disabilities and disadvantages because of a
general lack of knowledge or understanding of the subject of Federal
legislative jurisdiction and its consequences.
Article I, section 8, clause 17, of the Constitution of the United
States, the text of which is set out in appendix B to this report,
provides in legal effect that the Federal Government shall have
exclusive legislative jurisdiction over such area not exceeding 10
miles square as may become the seat of government of the United
States, and like authority over all places acquired by the Government,
with the consent of the State involved, for Federal works. It is the
latter portion of this clause, the portion which has been emphasized,
with which this report is primarily concerned.
(1)
2
The status of the District of Columbia, as the seat of government
area referred to in the first part of the clause, is fairly well
known. It is not nearly as well known that under the second part of
the clause the Federal Government has acquired, to the exclusion of
the states, jurisdiction such as it exercises with respect to the
District of Columbia over several thousand areas scattered over the 48
States. Federal acquisition of legislative jurisdiction over such
areas has made of them Federal islands within Stats, which the term
"enclaves" is frequently used to describe.
While these enclaves, which are used for all the many Federal
governmental purposes, such as post offices, arsenals, dams, roads,
etc, usually are owned by the Government, the United States in many
cases has received similar jurisdictional authority over privately
owned properties which it leases, or privately owned and occupied
properties which are located within the exterior boundaries of a large
area (such as the District of Columbia and various national parks) as
to which a State has ceded jurisdiction to the United States. On the
other hand, the Federal Government has only a proprietorial interest,
within vast areas of lands which it owns, for Federal proprietorship
over land and Federal exercise of legislative jurisdiction with
respect to land are not interdependent. And, as the Committee will
endeavor to make clear, the extent of jurisdictional control which the
government may have over land can and does vary to an almost infinite
number of degrees between exclusive legislative jurisdiction and a
proprietorial interest only.
The Federal Government is being required to furnish to areas within
the States over which it has jurisdiction in various forms
governmental services and facilities which its structure is not
designed to supply efficiently or economically. The relationship
between States and persons residing in Federal areas in those States
is disarranged and disrupted, with tax losses, lack of police control,
and other disadvantages to the States. Many residents of federally
owned areas are deprived of numerous privileges and services, such as
voting, and certain access to courts, which are the usual incidents of
residence within a State. In short, it was found by the Department of
Justice that this whole important field of Federal-State relations was
in a confused and chaotic state, and that more was needed a thorough
study of the entire subject of legislative jurisdiction with a view
toward resolving as many as possible of the problems which lack of
full knowledge and understanding of the subject had bred.
3
The Attorney general so recommended to the President and the
Cabinet, and with their approval and support the instant study
resulted. The preface to this report identifies the agencies, State
and Federal, which most actively participated in the study; subsequent
portions of the report set out in some detail the results of the
study. The Committee desires to outline at this point, so as to
furnish assistance for evaluation of its report, the manner in which
the study was conducted, the manner in which the Committee's report is
being presented, and some of the problems involved.
The land area of the United States is 1,903,824,640 acres. It was
ascertained from available sources that of this area the Federal
Government, as of a recent date, owned 405,088,566 acres, or more than
21 percent of the continental United States. It owns more than 87
percent of the land in the State of Nevada, over 50 percent of the
land in several other States, and considerable land in every State of
the Union. The Department of the Interior controls lands having a
total area greater than that of all the six New England State and
Texas combined. The Department of Agriculture control more than three
fourths as much land as the Department of the Interior. Altogether 23
agencies of the Federal Government control property owned by the
United States outside of the District of Columbia. Any survey
relating to these lands is therefore bound to constitute a
considerable project.
The Committee formulated a plan of study, of which portions
requiring such approval were approved by the Bureau of the Budget
under the Federal Reports Act of 1942 (B. B. No. 43-5501). This plan
involved the assignment to a number of Federal agencies of various
tasks which they were especially fitted to perform or as to which they
had accumulated information; the circularization to all agencies of
the Government which acquire, occupy, or operate real property of a
questionnaire (questionnaire A) designed to elicit general
information, concerning the numbers, areas, uses and jurisdictional
statuses of their properties and the practices, problems, policies,
and recommendations related to jurisdictional status which the
agencies might have; and the forwarding of an additional questionnaire
(questionnaire B) for each individual Federal installation in three
States (Virginia, Kansas, and California, selected as containing
properties which would illustrate jurisdictional problems arising
throughout the United States) which called for detailed information of
the same character as that requested by the general questionnaire
addressed to agencies. Federal agencies also were asked to submit a
synopsis of all opinions of their chief law officers concerning
matters affected by legislative jurisdiction.
4
Pursuant to further provisions of the plan of study the attorney
general of each State was requested, through the National Association
of Attorneys General, to furnish to the Committee a synopsis and
citation of each State constitutional provision, statute, judicial
decision, and attorney general opinion, concerning the acquisition of
legislative jurisdiction by the United States over lands within the
State; a statement of major problems experienced by State or local
authorities arising out of legislative jurisdiction; an indication of
privileges or services barred by State constitution or statutes to
areas under United States legislative jurisdiction or residents of
such areas, and any further comment concerning the subject which any
attorney general might have.
A tremendous mass of information has been accumulated by the
committee in the carrying out of the mentioned portions of the plan of
study. Material submitted by the 23 Federal agencies which control
federally owned land was refined by the Committee staff into memoranda
which, in the case of the 18 larger agencies, were made available to
each agency concerned for comment. The basic material involved, as
well as the staff memoranda and agency comment thereon, was utilized
by the committee as was necessary in its study.
The results of the Committee's study are reflected in the
succeeding pages of this report, in the two appendixes to the report,
and in a second report (Pt.II) which is under preparation.
The instant report (Pt.I) sets out the facts adduced by the
Committee and recommendations of the Committee with respect thereto.
In this portion of its work the Committee has labored to avoid to the
utmost extent possible any legalistic discussions. Citations to
constitutional provisions, statutes, or court decisions are made only
when it seems inescapably necessary to make them, and rarely is any
law quoted in the body of the report. It is the hope of the Committee
that this approach will make this report more useful than it otherwise
might be to nonlawyer officials, Federal and State, who have occasion
to deal with problems arising from ownership, possession or control of
land in the States by the Federal Government.
Appendix A to this report summarizes the basic factual information
received from individual Federal agencies in connection with this
study and sets out briefly the views of the agencies as to the
legislative jurisdictional requirements of properties under their
control. It is on this information received in reply to
questionnaires A and B, already referred to, that the Committee has
largely based its determinations as to the jurisdictional requirements
of Federal agencies.
Appendix B contains the texts of all constitutional provisions and
major statutes of general effect, Federal and States, directly
affecting
5
legislative jurisdiction, as such provisions and statutes were in
effect on December 31, 1955, with explanatory material relating
thereto. The contents of this appendix were necessarily developed for
analytical purposes during the course of the study and are included
with the report as a logical supplement and as of particular value to
lawyers and legislators for independent analysis.
The second report of the Committee (Pt.II) will be a legal text on
the subject of legislative jurisdiction. It will include
consideration of salient Federal and States constitutional provisions,
statutes, and court decisions, and opinions of major importance of
principal Federal and State law officers, which have come to the
attention of the Committee in the courses of the exhaustive study it
has endeavored to make of this subject.
There has been assimilated into the Committee's reports all the
legal learning in the legislative jurisdiction field of the members of
the Committee and of their predecessor chief law officers, as the
Committee has interpreted this learning from opinions rendered by
these officers. To this has been added consideration of legal
opinions of other chief law officers of the Federal Government,
including the Attorney General and the Comptroller General, and of
attorneys general of the several States, of court decisions in some
1,000 Federal and state cases, of matter in innumerable textbooks and
legal periodicals, and of all manner of factual and legal information
related to legislative jurisdiction submitted by 33 agencies of the
Federal Government.
The Committee notes that there has never before been conducted a
study of the subject of legislative jurisdiction approaching in
comprehensiveness the survey of the facts and the law which has been
made. While the Committee's reports cannot reflect every detail of
the study, it is hoped that they will provide a basis for resolving
most of the problems arising out of legislative jurisdiction
situations.
CHAPTER II
HISTORY AND DEVELOPMENT OF FEDERAL
LEGISLATIVE JURISDICTION
Origin of article I, section 8, clause 17, of the Constitution.--
This provision was included in the Constitution as the result of
proposals made to the Constitutional convention on May 29 and August
18, 1787, by Charles Pinckney and James Madison. The clause was born
because of the vivid recollection of the members of the Convention of
harassment suffered by the Continental Congress at Philadelphia, in
1783, at the hands of a mob of soldiers and ex-soldiers whom the
Pennsylvania authorities felt unable to restrain, and whose activities
forced the Congress to move its meeting place to Princeton, N.J. The
delegates to the constitutional convention, many of whom had suffered
indignities at the hands of this mob as members of the Continental
Congress, were impressed by this incident, and by a general
requirement for protection of the affairs of the then weak Federal
Government from undue influence by the stronger States, to provide for
an area independent of any State, and under federal jurisdiction, in
which the Federal Government would function. Without much debate
there was accepted the their that places other than the seat of
government which were held by the Federal Government for the benefit
of all the States similarly should not be under the jurisdiction of
any single State.
Objections made by Patrick Henry and others, based upon the dangers
to personal rights and liberties which clause 17 presented, were
anticipated or replied to by James Iredell of North Carolina
(subsequently a United States Supreme court Justice) and Mr. Madison.
They assured that the rights of residents of federalized areas would
by protected by appropriate reservations made by the States in
granting their respective consents to federalization. (It may be
noted that this assurance has to this time borne only little fruit.)
Early practice concerning acquisition of legislative jurisdiction.-
-The Federal City was established at what became Washington on land
ceded to the Federal Government for this purpose by the States of
Maryland and Virginia under the first portion of clause 17. However,
the provision of the second portion, for transfer of like jurisdiction
to the Federal Government over other areas acquired for Federal
purposes, was not uniformly exercised during the first 50 years of the
existence of the United states. It was exercised with respect to
most, but not all, lighthouse sites, with respect to various forts and
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8
arsenals, and with respect to a number of other individual properties.
But search of appropriate records indicates that during this period it
was often the practice of the Government merely to purchase the lands
upon which its installations were to be placed and to enter into
occupancy for the purposes intended, without also acquiring
legislative jurisdiction over the lands.
Acquisition of exclusive jurisdiction made compulsory.--The Federal
practice of not acquiring legislative jurisdiction in many cases was
terminated in 1841, as a result of what appears to have been a
legislative accident. A controversy had developed between the Federal
Government and the State of New York concerning the title to (not the
legislative jurisdiction over) a single area of land on Staten Island
upon which a fortification had been maintained for many years at
Federal expense. Presumably to avoid a repetition of such incidents,
the Congress provided by a joint resolution of September 11, 1841 (set
out in appendix B to this report as sec. 355 of the Revised Statutes
of the United States), that thereafter no public money could be
expended for public buildings [public works] on land purchased by the
United States until the Attorney General had approved title to the
land, and until the legislature of the State in which the land was
situated had consented to the purchase.
In facilitating Federal construction within their boundaries most
States during the ensuing years enacted statutes consenting to the
acquisition of land (frequently any land) within their boundaries by
the Federal Government. These general consent statutes had the effect
of implementing clause 17 and thereby vesting in the United States
exclusive legislative jurisdiction over all lands acquired by it in
the States. The only exceptions were cases where the Federal
Government plainly indicated, by legislation or by action of the
executive agency concerned, that the jurisdiction proffered by the
State consent statute was not accepted. Necessity for plain
indication by the Federal Government of nonacceptance of jurisdiction
came about because of a general theory in law that a proffered benefit
is accepted unless its nonacceptance is demonstrated.
It should be noted that lands already under the proprietorship of
the United States when these general consent statutes were enacted,
such as the lands of the so-called public domain, were not affected by
the statutes, and legislative jurisdiction with respect to them
remained in the several States. Curiously, therefore, the vast areas
of land which constitute the Federal public domain generally are held
by the United States in a proprietorial statute only. It should also
be noted that the 1841 Federal statute did not apply to lands acquired
by the United States upon which there was no intent to erect public
build-
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ings within the broad meaning of the statute. However, the Federal
Government quite completely divested the States, with their consent,
of legislative jurisdiction over numerous and large areas of land
which it acquired during the hundred year period following 1841
without, apparently, much concern being generated in any quarter for
the consequences.
State inroads upon acquisition of exclusive jurisdiction.--In the
course of the tremendous expansion of Federal land acquisition
programs which occurred in the 1930's the States became increasingly
aware of the impact upon State and local treasuries (which will be
discussed in considerable detail) of Federal acquisition of exclusive
legislative jurisdiction and its further impact on normal State and
local authority. With the development of this awareness there began
the development of a tendency on the part of States to repeal their
general consent statutes and in some cases to substitute for them what
may be termed "cession statutes," specifically ceding some measure of
legislative jurisdiction to the United States while frequently
reserving certain authority to the State. In other instances States
amended their consent statutes so that such states similarly reserved
certain authority to the State. Included among the reservations in
such consent and cession statutes are the right to levy various taxes
on persons and property situated on Federal lands and on transactions
occurring on such lands; criminal jurisdiction over acts and omissions
occurring on such lands; certain regulatory jurisdiction over various
affairs on such lands such as licensing rights, control of public
utility rates, and control over fishing and hunting; and the most
complete type of reservation--a retention by the State of all its
jurisdiction, to the Federal Government.
It should be emphasized that Federal instrumentalities and their
property are not in any event subject to State or local taxation or to
most types of State or local controls. However, the transfer to the
United States of exclusive legislative jurisdiction over an area has
the effect, speaking generally, of divesting the State and any
governmental entities operating under its authority of any right to
tax or control private persons or property upon the area. It was the
divesting of such rights that reservations in consent and cession
statutes were designed to combat.
Statutory enactments of various States have also fixed conditions
concerning procedural aspects of Federal acceptance of legislative
jurisdiction. For example, some States require publication of intent
to accept and recordation with county clerks of metes and bounds of
property, or have other similar requirements. In the case of one
10
State these procedural requirements have been deemed by some federal
agencies to be so onerous, and the reservations of jurisdiction made
by the State to be so broad, that the agencies have not felt justified
in meeting the procedural requirements in view of the small amount of
jurisdiction which is thereby acquired.
Retrocession by the Federal Government.--The States could not by
unilateral action retrieve from the Federal Government authority which
they had surrendered over areas as to which they had already ceded
exclusive legislative jurisdiction to the Government, but during the
mentioned period when States were altering their consent statutes the
Federal Government relinquished to the States the authority to tax
sales of motor vehicle fuels, to impose sales and use taxes, and to
levy income taxes. These relinquishments, or retrocession, were
applicable to areas as to which jurisdiction previously had been
acquired as well as to future acquisitions. The term "retrocede" is
used generally here and throughout this report to include waivers of
immunity as well as retrocession of jurisdiction. The statutes
involved are set out in appendix B in the codified form in which they
appear in title 4 of the United States Code.
Exclusive jurisdiction requirement terminated.--There was also
enacted, on February 1, 1940, an amendment to section 355 of the
Revised Statues of the United States which eliminated the requirement
for State consent to any Federal acquisition of land as a condition
precedent to expenditure of Federal funds for construction on such
land. The amendment substituted for the previous requirement provided
that (1) the obtaining of exclusive jurisdiction in the United States
over lands which it acquired was not to be required, (2) the head of a
Government agency could file with the governor or other appropriate
officer of the State involved a notice of the acceptance of such
extent of jurisdiction as he deemed desirable as to any land under his
custody, and (3) until such a notice was filed it should be
conclusively presumed that no jurisdiction had been accepted by the
United States. This amendment ended the 100-year period during which
nearly all the land acquired by the United States came under the
exclusive legislative jurisdiction of the Federal Government.
Subsequent developments.--Federal abandonment, through the revision
of Revised Statute 355, of the nearly absolute requirement for State
consent to federal land acquisition had two direct effects: (1) the
state tendency to amendment of consent and cession laws so as to
provide various reservations was accelerated, and (2) Federal
administrators, particularly of newer agencies which did not have
long-established habits of acquiring exclusive legislative
jurisdiction, tended not to acquire any legislative jurisdiction for
their lands. The first
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tendency has developed to the point that, it may be seen from appendix
B to this report, as of a recent date only 25 States, many of these
having relatively little Federal property within their boundaries,
still proffered exclusive legislative jurisdiction to the Federal
Government by a general consent or cession statute. The other
tendency has been sufficiently manifested that, it will be noted from
more specific information offered later in this report, a very large
proportion of federal properties is now held with less than exclusive
jurisdiction in the United States.
The tendencies described have not had any substantial effect on the
bulk of properties as to which jurisdiction was acquired by the United
States prior to 1949. Property acquired by the Federal Government
with a vesting of legislative jurisdiction continues to this time in
the same general jurisdictional status as originally attached. An
exception occurs in those cases in which there is a limitation on the
exercise of legislative jurisdiction by the United States specifically
or by implication set out in the State statute under which the Federal
Government procured such jurisdiction (such as a limitation that the
proffered jurisdiction shall continue in the United States only so
long as the United States continues to own a property, or so long as
the property is used for a specified purpose). Once legislative
jurisdiction has vested in the United states it cannot be retested in
the State, other than by operation of a limitation, except by or under
an act of Congress.
The Congress has acted, mainly, only to authorize imposition of the
specific State taxes already mentioned, to permit States to apply and
enforce their unemployment compensation and workmen's compensation
laws in Federal areas, and to retrocede to the States jurisdiction
over a mere handful of properties (in the last category the usual case
involves only a retrocession of concurrent criminal jurisdiction with
respect to a public highway traversing a Government reservation). The
Congress has also authorized the Attorney General and the
Administrator of Veterans' Affairs, respectively, to retrocede
jurisdiction in certain limited instances, but this authority appears
to have been rarely used; and the Congress has extended to the State
jurisdiction over criminal offenses occurring on immigrant stations.
Whether the Congress has authorized imposition of State and local
taxes on private interests in all military housing constructed under
the so-called Wherry Act, some of which is located on areas as to
which the United States has received legislative jurisdiction, is a
question now before the Supreme Court of the United States. All the
statutes involved are, as has already been indicated, set out in
appendix B to this report.
CHAPTER III
DEFINITIONS--CATEGORIES OF LEGISLATIVE
JURISDICTION
Exclusive legislative jurisdiction.--The term "exclusive
legislative jurisdiction" as used in this report refers to the power
"to exercise exclusive legislation" granted to the Congress by article
I, section 8, clause 17, of the Constitution, and to the like power
which may be acquired by the United States through cession by a State,
or by a reservation made by the United States through cession by a
State, or by a reservation made by the United States in connection
with the admission of a State into the Union. In the exercise of such
power as to an area in a State the Federal Government theoretically
displaces the State in which the area is contained of all its
sovereign authority, executive and judicial as well as legislative.
By State and Federal statutes and judicial decisions, however, it is
accepted that a reservation by a State of only the right to serve
criminal and civil process in an area, resulting from activities which
occurred off the area, is not inconsistent with exclusive legislative
jurisdiction.
The existence of Federal retrocession statutes has had the effect
of eliminating any possibility of the possession by the Federal
Government at this time of full exclusive legislative jurisdiction,
since all States may exercise jurisdiction in consonance with such
statutes notwithstanding that they cede exclusive legislative
jurisdiction. However, in view of a widespread use of the term
"exclusive legislative jurisdiction" in this manner, the Committee for
purposes of the instant study has applied the term to the situation
wherein the Federal Government possess, by whichever method acquired,
all the authority of the State, and in which the State concerned has
not reserved to itself the right exercise any authority concurrently
with the United States except the right to serve civil or criminal
process in the area.
Because reservations made by the States in granting jurisdiction to
the Federal Government have varied so greatly, and in order to
describe situations in which the government has received or accepted
no legislative jurisdiction over property which it owns, the Committee
has found it desirable to adopt three other terms which are in general
use in reference to jurisdictional status, and in an effort at
precision has defined these terms. While these definitions are based
on judicial decisions and similar authorities, and on usage in
Government agencies, it is desired to emphasize that they are made
here only for the purposes
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of this study, and that they are not purported as absolute criteria
for interpreting legislation or judicial decisions, or for other
purposes. By way of example the Assimilative Crimes Act, referred to
at several points in this report, which by its terms is applicable to
areas under exclusive or concurrent jurisdiction, in the usual case is
applicable in areas here defined as under partial jurisdiction.
Concurrent legislative jurisdiction.--This term is applied in those
instances wherein in granting to the United States authority which
would otherwise amount to exclusive legislative jurisdiction over
areas the State concerned has reserved to itself the right to
exercise, concurrently with the United States, all of the same
authority.
Partial legislative jurisdiction.--This term is applied in those
instances wherein the Federal Government has been granted for exercise
by it over an area in a State certain of the State's authority, but
when the State concerned has reserved to itself the right to exercise,
by itself or concurrently with United States, other authority
constituting more than merely the right to serve civil or criminal
process in the area (e.g., the right to tax private property).
Proprietorial interest only.--This term is applied to those
instances wherein the Federal Government has acquired some right or
title to an area in a State but has not obtained any measure of the
State's authority over the area. In applying this definition
recognition should be given to the fact that the United States, by
virtue of its functions and authority under various provisions of the
Constitution, has many powers and immunities not possessed by ordinary
landholders with respect to areas in which it acquires an interest,
and of the further fact that all its properties and functions are held
or performed in a governmental rather than a proprietary capacity.