Legislative Jurisdiction on federally managed public lands in the Western half of the United States is not complicated. The process required for the federal government to obtain legislative jurisdiction on public lands within a state has a very well documented history and as you see within www.PublicLandJurisdiction.com the process is relatively straight forward to research. In this article, like others, we will use federal documents to define the three ways for the federal government to obtain jurisdiction on federally managed public lands within a state.
In the 1957 federal report titled, Part II Interdepartmental Committee for the Study of Jurisdiction over Federal Areas within the States, Chapter 3 (Acquisition of Legislative Jurisdiction), Page 41-46 it states the following:
“THREE METHODS FOR FEDERAL ACQUISITION OF JURISDICTION”
“Constitutional consent.–The Constitution gives express recognition to but one means of Federal acquisition of legislative jurisdiction– by State consent under article I, section 8, clause 17. The debates in the Constitutional Convention and State ratifying conventions leave little doubt that both the opponents and proponents of Federal exercise of exclusive legislature jurisdiction over the seat of government were of the view that a constitutional provision such as clause 17 was essential if the Federal government was to have such jurisdiction. At no time was it suggested that such a provision was unessential to secure exclusive legislative jurisdiction to the Federal Government over the seat of government. While, as has been indicated in the preceding chapter, little attention was given in the course of the debates to Federal exercise of exclusive legislative jurisdiction over areas other than the seat of government, it is reasonable to assume that it was the general view that a special constitution provision was essential to enable the United States to acquire exclusive legislative jurisdiction over any area. Hence,the proponents of exclusive legislative jurisdiction over the seat of government and over federally owned areas within the States defended the inclusion in the Constitution of a provision such as article I,section 8, clause 17. And in United States v. Railroad Bridge Co.,27 Fed. Cas. 686, 693, No. 16,114 (C.C.N.D. Ill., 1855), Justice McLean suggested that the Constitution provided the sole mode for transfer of jurisdiction, and that if this mode is not pursued no transfer of jurisdiction can take place.”
…..”No federal legislative jurisdiction without consent, cession, or reservation.–It scarcely needs to be said that unless there has been a transfer of jurisdiction (1) pursuant to clause 17 by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being for exercise entirely by the State, subject to non-interference by the State with Federal functions, and subject to the free exercise by the Federal Government of rights with respect to the use, protection, and disposition of its property. ”
….”NECESSITY OF STATE ASSENT TO TRANSFER OF JURISDICTION TO FEDERAL GOVERNMENT: Constitutional consent.–The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State. Article I, section 8, clause 17, of the Constitution, provides that legislative jurisdiction may be transferred pursuant to its terms only with the consent of the legislature of the State in which is located the area subject to the jurisdictional transfer. As was indicated in chapter II, the consent requirement of article I, section 8, clause 17, as intended by the framers of the Constitution to preserve the States’ jurisdictional integrity against Federal encroachment. State cession or Federal reservation.–The transfer of legislative jurisdiction pursuant to either of the two means not spelled out in the constitution likewise requires the assent of the State in which is located the area subject to the jurisdictional transfer. Where legislative jurisdiction is transferred pursuant to a State cession statute, the State has quite clearly assented to the transfer of legislative jurisdiction to the Federal Government, since the enactment of a State cession statute is a voluntary act on the part of the legislature of the State.”
…”The second method not spelled out in the Constitution of vesting legislative jurisdiction in the Federal Government, namely, the reservation of legislative jurisdiction by the Federal Government at the time statehood is granted to a Territory, does not involve a transfer of legislative jurisdiction to the Federal Government by a State, since the latter never had jurisdiction over the area with respect to which legislative jurisdiction is reserved. While, under the second method of vesting legislative jurisdiction in the Federal Government, the latter may reserved such jurisdiction without inquiring as to the wishes or desires of the people of the Territory to which statehood has been granted, nevertheless, the people of the Territory involved have approved, in at least a technical sense, such reservation. Thus, the reservation of legislative jurisdiction constitutes, in the normal case, one of the terms and conditions for granting statehood, and only if all of the terms and conditions are approved by a majority of the Territorial legislature, is statehood granted.”
…”NECESSITY OF FEDERAL ASSENT: Express consent required by R. S. 355.–Acquiescence, or acceptance, by the Federal Government, as well as by the State, is essential to the transfer of legislative jurisdiction to the Federal Government. When legislative jurisdiction is reserved by the Federal Government at the time statehood is granted to a Territory, it is, of course, obvious that the possession of legislative jurisdiction meets with the approval of the Federal Government. When legislative jurisdiction is to be transferred by a State to the Federal Government either pursuant to article I, section 8, clause 17, of the Constitution, or by means of a State cession statute, the necessity of Federal assent to such transfer of legislative jurisdiction has been firmly established by the enactment of the February 1, 1940, amendment to R.S. 355. While this amendment in terms specifies requirement for formal Federal acceptance prior to the transfer of exclusive or partial legislative jurisdiction, it also applies to the transfer of concurrent jurisdiction.”
In the Federal Legislative Jurisdiction Report Prepared Wayne Aspinall for Public Land Law Review Commission, Land and Natural Resources Division, United States Department of Justice, Washington, DC, May 1969, Page 49 it states the following “….. in 1841, when the Congress, apparently as a consequence of a dispute which it was having with the State of New York as to the title to (not the jurisdiction of) a fortification on Staten Island, enacted a statute requiring consent by the legislature of a State to a Federal acquisition of land prior to the expenditure of any Federal funds upon such land. Whatever the purpose of the 1841 statute, its prompt effect was to bring about enactment by State legislatures, eager for Federal post offices, arsenals, and other installations, of statutes giving consent in the broadest and most general language to Federal acquisition of property in their States for Federal purposes. These State statutes not only met the consent prerequisite of the Federal Act for expenditure of Federal funds, but had the effect of implementing article 1, section 8, clause 17, of the Constitution, and of rendering exclusive legislative jurisdiction to the United States over all property which it acquired in such a State, unless the United States plainly indicated by legislation or otherwise, that the jurisdiction profered by the State statute was not accepted.
Page 50…. “Federal statute curtailing Federal jurisdiction. In 1940 the flood of transfers of legislative jurisdiction to the United States was stayed, by an amendment to section 355 of the Revised Statutes of the United States which eliminated the presumption of Federal acceptance. The amendment provided: Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired, as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted (R.S. 355, as amended February 1, 1940, 54 Stat. 19; 40 u.s.c. 255).”
“This ended a period of 100 years during which the Federal Government, with relatively minor exceptions, acquired legislative jurisdiction over substantially all of its land acquisitions within the States. While the necessity for some Federal agency initiative which was required by the 1940 amendment sharply curtailed agency acquisition of legislative jurisdiction.”
Page 51…. “Curtailing effect of Interdepartmental Committee Study. Problems relating to jurisdictional status of Federal properties had always been handled on a case by case basis until, in 1954, the Department of Justice had occasion to consider whether it should join in petition for a writ of certiorari to the Supreme Court in a case in which there had been affirmed through the highest court of a State a decision by a school board that certain children within the outer boundaries of its district were not entitled to education in the public schools of the district. The administrative and judicial decisions involved were based on the premise that since exclusive jurisdiction had been ceded to the United States by the State over the Veterans Administration hospital grounds on which these children resided with their Federal employee parents, the grounds were not a part of the State (or the school district) so as to entitle the children to public school education as a privilege of State residency. 129/ Because appropriate means were found for the education of the children involved, a petition was not filed in this case. However, on the recommendation of the Department of Justice, the President approved a comprehensive study of the facts and the law relating to Federal possession of legislative jurisdiction over its properties. Such a study was conducted, with the collaboration of some thirty-two Federal agencies, the Attorneys General of the several States, and numerous other agencies and persons, public and private. On the basis of the factual and legal data which was developed, the Interdepartmental Committee conducting the study concluded that in the usual case there was an increasing preponderance of disadvantages over advantages with increase of jurisdiction in the United States, and that with respect to the large bulk of federally owned or operated real property in the several States and outside of the District of Columbia, it was desirable that the Federal Government not receive, or retain, any measure whatever of legislative jurisdiction, but that it hold its installations and land areas in a proprietorial interest only, with legislative jurisdiction remaining in the States. The desirability of concurrent jurisdiction, with the State retaining similar jurisdiction, was recognized for some installations and areas which are beyond
the capacity of the State or land governments to service. The Committee’s recommendations were indorsed by the President and were published, together with the President’s indorsement, in 1956. 130/ Publication of a legal text on the subject followed in 1957. 131/ .”