Tags

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

UNITED STATES GOVERNMENT PRINTING OFFICE

WASHINGTON: 1956

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,
_________________________________________________

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,

_____________________________________________

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,

_____________________________________________

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,

_____________________________________________

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
_____________________________________________

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 General, Tennessee)

Frank F. Harding, Maine

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 cession 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 area 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:

Acquisition of national defense housing not to deprive State 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 interfere 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,

_____________________________________________

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

(7)

8

arsenals,

and

with respect to a number of other individual properties

But search of appropriate records indicates that during this period it was often the practice of the

Government

merely to purchase the lands upon which its installations were to be placed and to enter into occupancy for the purposes intended, without also acquiring

legislative jurisdiction

over the lands

Acquisition of

exclusive jurisdiction

made compulsory.–The Federal practice of not acquiring

legislative jurisdiction

in many cases was terminated in 1841, as a result of what appears to have been a legislative accident

A controversy had developed between the

Federal Government

and the State of New York concerning the title to

(not the legislative jurisdiction over)

a single area of land on Staten Island upon which a fortification had been maintained for many years at Federal expense

Presumably to avoid a repetition of such incidents, the Congress provided by a joint resolution of September 11, 1841

(set out in appendix B to this report as sec. 355 of the Revised Statutes of the United States),

that thereafter no public money could be expended for public buildings

[public works]

on land purchased by the

United States

until the Attorney General had approved title to the land, and until the legislature of the State in which the land was situated had consented to the purchase

In facilitating

Federal construction

within their boundaries most States during the ensuing years enacted statutes consenting to the acquisition of land

(frequently any land)

within their boundaries by the

Federal Government

These general consent statutes had the effect of implementing clause 17 and thereby vesting in the

United States exclusive legislative jurisdiction

over all lands acquired by it in the States

The only exceptions were cases where the

Federal Government

plainly indicated, by legislation or by action of the

executive agency concerned, that the

jurisdiction

proffered by the State consent statute was not accepted

Necessity for plain indication by the

Federal Government

of nonacceptance of

jurisdiction

came about because of a general theory in law that

a proffered benefit is accepted unless its nonacceptance is demonstrated

It should be noted that lands already under the

proprietorship

of the United States

when these general consent statutes were enacted, such as the lands of the so-called public domain, were not affected by the statutes, and

legislative jurisdiction

with respect to them remained in

the several States
_____________________________________________

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-ings within the broad meaning of the statute

However, the

Federal Government

quite completely divested the States, with their consent, of

legislative jurisdiction

over numerous and large areas of land which it acquired during the hundred year period following 1841 without, apparently, much concern being generated in any quarter for the consequences

State inroads upon acquisition of

exclusive jurisdiction.–In the course of the tremendous expansion of

Federal land acquisition programs

which occurred in the 1930’s the States became increasingly aware of the impact upon State and local treasuries

(which will be discussed in considerable detail)

of Federal acquisition

of exclusive legislative jurisdiction

and its further impact on normal State and local authority

With the development of this awareness there began the development of a tendency on the part of States to repeal their general consent statutes and in some cases to substitute for them what may be termed

cession statutes,”

specifically ceding some measure of

legislative jurisdiction

to the United States

while frequently

reserving certain authority to the State

In other instances States amended their consent statutes so that such states similarly

reserved certain authority to the State

Included among the reservations in such consent and cession statutes are the right to

levy various taxes

on

persons

and

property

situated on

Federal lands

and

on transactions occurring on such lands;

criminal jurisdiction

over

acts

and

omissions

occurring on such lands;

certain regulatory jurisdiction

over various affairs on such lands such as

licensing rights,

control of public utility rates,

and

control over

fishing

and

hunting;

and

the most complete type of

reservation–a retention by the State of all its

jurisdiction,

to the Federal Government

It should be emphasized that

Federal instrumentalities

and their property are not in any event subject to State or local

taxation

or to most types of State or local controls

However, the transfer to the

United States

of exclusive legislative jurisdiction

over an area has the effect, speaking generally, of divesting the State and any governmental entities operating under its authority of any

right to

tax

or

control private persons

or

property

upon the area

It was the divesting of such

rights

that reservations

in consent and cession statutes

were designed to combat

Statutory enactments of various States have also fixed conditions concerning procedural aspects of

Federal acceptance of

legislative jurisdiction

For example, some States require publication of intent to accept and recordation with county clerks of metes and bounds of property, or have other similar requirements

In the case of one

10

State these procedural requirements have been deemed by some

federal agencies

to be so onerous, and the

reservations

of

jurisdiction

made by the State to be so broad, that the

agencies

have not felt justified in meeting the procedural requirements in view of the small amount of

jurisdiction

which is thereby acquired

Retrocession by the

Federal Government.–The States could not by unilateral action retrieve from the

Federal Government

authority which they had surrendered over

areas

as to which they had already

ceded exclusive legislative jurisdiction

to the

Government,

but during the mentioned period when States were altering their consent statutes the

Federal Government

relinquished to the States the authority to tax sales of motor vehicle fuels, to impose sales and

use taxes,

and to

levy income taxes

These relinquishments, or retrocession, were applicable to

areas

as to which

jurisdiction

previously had been acquired as well as to future acquisitions

The term

retrocede

is used generally here and throughout this report to include

waivers of immunity

as well as retrocession of jurisdiction

The statutes involved are set out in appendix B in the codified form in which they appear in title 4 of the

United States Code

Exclusive jurisdiction

requirement terminated.–There was also enacted, on February 1, 1940, an amendment to section 355 of the

Revised Statues of the United States

which eliminated the requirement for State consent to any

Federal acquisition of land

as a condition precedent to expenditure of

Federal funds for construction on such land

The amendment substituted for the previous requirement provided that

(1) the obtaining of

exclusive jurisdiction

in the

United States

over lands which it acquired was not to be required,

(2) the head of a

Government agency

could file with the

governor

or other appropriate officer of the State involved a notice of the acceptance of such extent of

jurisdiction

as he deemed desirable as to any land under his custody, and

(3) until such a notice was filed it should be conclusively presumed that no

jurisdiction

had been accepted by the

United States

This amendment ended the 100-year period during which nearly all the land acquired by the

United States

came under the

exclusive legislative jurisdiction

of the

Federal Government

Subsequent developments.–Federal abandonment, through the revision of Revised Statute 355, of the nearly absolute requirement for State consent to

federal land acquisition

had two direct effects:

(1) the state tendency to amendment of consent and cession laws so as to provide various

reservations

was accelerated, and

(2) Federal administrators,

particularly of newer agencies which did not have long-established habits of acquiring

exclusive legislative jurisdiction,

tended not to acquire any

legislative jurisdiction

for their lands

The first

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

(13)

14

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
_____________________________________________
http://www.constitution.org/juris/fjur/1fj1-3.htm
_____________________________________________
Articles
—————————————————————–
https://wikipediaint.wordpress.com/about/

Advertisements