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
UNITED STATES
GOVERNMENT PRINTING
OFFICE
WASHINGTON: 1956
Reprints available from:
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
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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
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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.