Federal Jurisdiction

  The 2014 “Bundy Standoff” in Southern Nevada and the 2016 “Bundy Occupation” of the Malheur National Wildlife Refuge in Burns, Oregon may have been cause for some to doubt the authority of Federal land management agencies to own land, regulate uses on those lands and employ law enforcement officers.  The participants in these two events have presented themselves as persons fighting for the U.S. Constitution. They wave their pocket sized editions of the Constitution around and purport to be “Constitutional experts.”  However, their defective interpretation of the Constitution couldn’t be farther from the truth.  Further, their defective reasoning ultimately causes them to deny over 200 years of American history in regards to the disposition and regulation of the Federal lands that were once referred to as the public domain.  If their defective reasoning was true it would mean that all the lands that were granted to private entities through such laws as the Homestead Act are invalid.  It would also mean special places set aside for the use and enjoyment of the citizens in the form of National Parks, National Wildlife Refuges, National Forests, National Monuments, National Conservation Areas, etc. are all invalid.  Lastly, it is the Supreme Court of the United States who under the Constitution is responsible for making interpretations of the Constitution.  So if their defective reasoning was true, then all the Case Law established by the Supreme Court in regards to Federal property are all invalid.  One could say that the Bundy movement and their followers are all “history deniers.”  The bottom line is, their defective reasoning and erroneous conclusions are all just nonsense, but nevertheless they can cause doubt and have made necessary the explanations provided here.


 There are ffour significant clauses that provide the federal government authority over federal property and resources.  These clause are (1) the Cession or Enclave Clause (Article I, Section 8, Clause 17); (2) the Commerce Clause (Article I, Section 8, Clause 3); (3) the Treaty Clause (Article II, Section 2, Clause 2); and (4) the Property Clause (Article IV, Section 3, Clause 2).  These clauses must be viewed collectively and in their full context.  One of the dangers caused by personal interpretation (or revelation) of the Constitution is “cherry picking” only those sections and clauses that support your personal beliefs.  Such is the case with the Bundy movement.  Further they take their defective interpretations and spread them to other like minded people.  They stir the pot by claiming their position to be righteous and proffer the use of force, threat, and intimidation all in the name of defending the Constitution.  This creates a very dangerous environment for land management law enforcement officers, land management agency employees, and for the citizens who desire to pursue legitimate uses on the Federal lands.


 The Cession or Enclave Clause is the only clause that Bundy movement followers (hereinafter referred to as “detractors”) use to justify their position.  (They also use the Second Amendment, but that is a whole separate and complicated discussion).  The Enclave Clause states: 


  To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.


 This clause is primarily about the establishment of what is today known as the District of Columbia.  The detractors quickly “cherry pick” the phrase in parentheses “not exceeding ten miles square” and believe that other than this, the federal government cannot own any other land.  But they disregard the phrase “to exercise like authority over all places purchased.”  The federal government can indeed “purchase” lands and further, history has shown that they can take land through acts of war and through treaties.  While such lands were territories (before the establishment of a state) no consent of a legislature was required because such legislature did not exist.  Thomas Jefferson certainly did not have the consent of any state legislature to make the Louisiana Purchase!  In cases where a state legislature does exist, then consent of the legislature is required, but only when the federal government wants to exercise “exclusive jurisdiction.”  The best land management example of this is Yellowstone National Park.  Yellowstone National Park was established in 1872, before the State of Wyoming existed.  The federal government exercises exclusive jurisdiction over the lands within the boundaries of the park in much the same manner as the District of Columbia.  Hence the term “enclave” in that the park exists as an federal enclave within the State of Wyoming.  Other examples of federal lands that are under exclusive federal jurisdiction include some Native American reservations, many military bases, Department of Energy facilities, and a few other National Parks, etc.  When such places were established after a state came into existence, then consent of the state legislature was required.


 The Commerce Clause reads as follows:


 To regulate Commerce with foreign Nations, and among the several states, and with Indian tribes. 


 The Treaty Clause reads as follows:


 He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties ...


 The Commerce Clause and the Treaty Clause have often been used separately or in combination to provide authority for the federal government to provide protection for fish and wildlife resources. In Europe, fish and wildlife usually belong to the land owner and any one who wishes to fish and hunt must have the permission of the land owner.  But in the United States, any citizen can fish and hunt when licensed by the State.  If the United States had evolved based upon a principle that all lands acquired by the federal government must all be disposed of and transferred to the ownership of private citizens, then fishing and hunting here would be a lot like it is in Europe.  But the historic establishment of the forest reserves (now called national forests) created huge swaths of public land where public fishing and hunting would become the rule and not the exception.  Often, fish and wildlife resources are migratory in nature and they readily cross state and national boundaries.  Therefore, the Commerce Clause and the Treaty Clause provide authority to treat fish and wildlife resources in a manner that could define them as federal property.  But, the federal government by historical practice and tradition has deferred the responsible for regulating the take of fish and wildlife resources to the states.  However, the federal government has passed many statutes in regard to wildlife protection.  At first the focus was on interstate commerce and treaties as in the Lacey Act and the Migratory Bird Treaty Act.  But later the focus was expanded through such acts as the Bald Eagle and Golden Eagle Act, the Sikes Act, the Marine Mammals Protection Act, the Endangered Species Act, etc.


 One of the most significant authorities granted to the federal government is the Property Clause.  However, when the detractors “cherry pick” from the Constitution, they most always completely disregard the existence of this clause.  It seems that in their defective reasoning, they skip about 15 pages of the pocket sized Constitution booklet and go straight to the 10th Amendment.  The 10th Amendment provides:


 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


 The detractors mistake is that a “power” for the ownership and regulation of the federal lands is delegated to the United States by the Constitution.  That power is found on one of those pages that they skipped and it exists in the Property Clause that provides:


 The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.


 There have been many cases brought before the Supreme Court in regards to how this clause provides authority for the federal government to regulate activities on federal lands.  While these cases are way too numerous to provide here, it may be helpful to examine one of the first cases and one of the last cases to understand the parameters of the power derived from this clause.  In the 1897 Camfield v. United States case, the Court found:


 The general government doubtless has a power over its own property analogous to the police power of the several states.


 In the 1976 Kleppe v. New Mexico, the Court found:


 The furthest reaches of the power granted by the clause have not yet been definitely resolved, the power over the public lands thus entrusted to Congress is without limitations.


 What has emerged from the long history of case law in regards to exercising “police power” on federal property are three basis types of federal jurisdiction: (1) exclusive jurisdiction; (2) concurrent jurisdiction; and (3) proprietorial jurisdiction. 


 Areas of exclusive jurisdiction are places where the federal government has obtained the consent (or cession) from the State legislature.  In areas of exclusive jurisdiction, only the federal government may exercise “police powers” and conduct law enforcement activities.  State law enforcement officials may only exercise law enforcement authority in these places in support of the federal government when specifically invited to do so.  The federal government can use the Assimilated Crimes Act to enforce all state laws using the federal criminal justice system (not the state courts). There are several National Park Service areas that are under this type of federal jurisdiction.  Many Native American reservations and military installations are also under this type of jurisdiction.


 Areas of concurrent jurisdiction are places where the federal government has obtained the consent (or cession) from the State legislature but the State legislature specifically retained their own jurisdiction over such places.  In these areas, both the federal government and the state may exercise their law enforcement jurisdiction independent of each other. The federal government can use the Assimilated Crimes Act to enforce all state laws using the federal criminal justice system (not the state courts).  Again, the National Park Service is the best land management example of having places that are under concurrent jurisdiction.


 Areas of proprietorial jurisdiction are places where the federal government has only the authority to regulate activities on such lands pursuant the authority of the Property Clause and the enabling acts (needful rules and regulations) enacted by the Congress.  In these cases, the federal government may enforce its own laws and regulations applicably to such areas, but the state and local law enforcement officials remain in charge of general law enforcement matters. It could be said that this is an authority any land owner would have over their property.  However, when Congress defines and delegates that authority through enactment of specific statutes, it becomes so much more than what a normal property owner would enjoy.  All the other land management agencies (Bureau of Land Management, Forest Service, Fish and Wildlife Service, Army Corps of Engineers)  more or less administer their federal lands under proprietorial jurisdiction.  There are however rare examples of when their jurisdiction may be exclusive or concurrent.  This is most often the case when a former military reservation is returned to the public domain where a former base had obtained exclusive jurisdiction during the period of its operation.  However, the land management agencies generally prefer to administer their lands under proprietorial jurisdiction because they lack the ability, expertise, and organizational infrastructure to conduct general law enforcement activities.


 In the land management agencies, all law enforcement authority must be conferred by statute.  Only the FBI and the U.S. Marshal Service have statutes that allow them to enforce all Federal laws.  In the case of the land management agencies, their specific enabling statutes define the scope of their law enforcement authority.  In general, this means that each agency’s individual law enforcement officers are given authority for enforcing only the laws and regulations of their agency and their law enforcement activities are restricted (with some case law exceptions) to the lands that they administer. 


 Land management law enforcement officers can only enforce state and local laws under two circumstances: (1) where the agency’s regulations have “assimilated” certain state and local laws; and (2) the officers have been “deputized” by a state or local official who has the authority to deputize under state law.  State laws that are “assimilated” by agency regulations are generally those that relate to the uses of the lands in question.  Examples would be motorized vehicles, forest and vegetative products, fire prevention, and the take of fish and game resources.  When land management law enforcement officers enforce these regulations, it is done through the federal criminal justice system (not the state courts).  When the land management law enforcement officers are “deputized” they will operate under an agreement of some sort with the deputizing official in which they receive instruction as to the scope and/or limitations of such authority.  When they operate under such circumstances they enforce state and local laws through the state courts.  Enforcement of assimilating regulations can be done by the federal agency without consent of state and local officials.  But law enforcement officers being deputized by a state or local official, always requires the consent of such local officials and exercise of such authority is done under that official’s instructions.


The best sources for background on this subject are:

1.  Federal Legislative Jurisdiction, Report Prepared for Public Land Law Review Commission, Land and Natural Resources Division, United States Department of Justice, Washington, DC, May 1969.

2. The Scope of Congress’ Constitutional Power Under the Property Clause: Regulating Non-Federal Property to Further the Purposes of National Parks and Wilderness Areas, Blake Shepard, Boston College Environmental Affairs Law Review, Volume 11, Number 3, April 1984.