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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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

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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

11

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.