Saturday, January 19, 2008

Legal Brief on Federal Jurisdiction

I have received a number of requests for legal cites backing my recent
message on the constitutional issues in the Kaczynsky case. A good brief on
this has been prepared by attorney Larry Becraft, for whom we have a link to
his site on our Legal Reform page. Here is the brief:


In the United States, there are two separate and distinct
jurisdictions, such being the jurisdiction of the States within
their own territorial boundaries and the other being federal
jurisdiction. Broadly speaking, state jurisdiction encompasses the
legislative power to regulate, control and govern real and personal
property, individuals and enterprises within the territorial
boundaries of any given State. In contrast, federal jurisdiction
is extremely limited, with the same being exercised only in areas
external to state legislative power and territory. Notwithstanding
the clarity of this simple principle, the line of demarcation
between these two jurisdictions and the extent and reach of each
has become somewhat blurred, due to popular misconceptions and the
efforts expended by the federal government to conceal one of its
major weaknesses. Only by resorting to history and case law can
this obfuscation be clarified and the two distinct jurisdictions be
readily seen.

The original thirteen colonies of America were each separately
established by charters from the English Crown. Outside of the
common bond of each being a dependency and colony of the mother
country, England, the colonies were not otherwise united. Each had
its own governor, legislative assembly and courts, and each was
governed separately and independently by the English Parliament.

The political connections of the separate colonies to the
English Crown and Parliament descended to an unhappy state of
affairs as the direct result of Parliamentary acts adopted in the
late 1760's and early 1770's. Due to the real and perceived
dangers caused by these various acts, the First Continental
Congress was convened by representatives of the several colonies in
October, 1774, the purpose of which was to submit a petition of
grievances to the British Parliament and Crown. By the Declaration
and Resolves of the First Continental Congress, dated October 14,
1774, the colonial representatives labeled these Parliamentary
acts of which they complained as "impolitic, unjust, and cruel, as
well as unconstitutional, and most dangerous and destructive of
American rights," and the purpose of which were designs, schemes
and plans "which demonstrate a system formed to enslave America."
Revolution was assuredly in the formative stages absent
conciliation between the mother country and colonies.

Between October, 1775, and the middle of 1776, each of the
colonies separately severed their ties and relations with England,
and several adopted constitutions for the newly formed States. By
July, 1776, the exercise of British authority in any and all
colonies was not recognized in any degree. The capstone of this
actual separation of the colonies from England was the more formal
Declaration of Independence.

The legal effect of the Declaration of Independence was to
make each new State a separate and independent sovereign over which
there was no other government of superior power or jurisdiction.
This was clearly shown in M'Ilvaine v. Coxe's Lessee, 8 U.S. (4
Cranch) 209, 212 (1808), where it was held:

"This opinion is predicated upon a principle which is
believed to be undeniable, that the several states which
composed this Union, so far at least as regarded their
municipal regulations, became entitled, from the time
when they declared themselves independent, to all the
rights and powers of sovereign states, and that they did
not derive them from concessions made by the British
king. The treaty of peace contains a recognition of
their independence, not a grant of it. From hence it
results, that the laws of the several state governments
were the laws of sovereign states, and as such were
obligatory upon the people of such state, from the time
they were enacted."

And a further expression of similar import is found in Harcourt v.
Gaillard, 25 U.S. (12 Wheat.) 523, 526, 527 (1827), where the Court

"There was no territory within the United States that was
claimed in any other right than that of some one of the
confederated states; therefore, there could be no
acquisition of territory made by the United States
distinct from, or independent of some one of the states.

"Each declared itself sovereign and independent,
according to the limits of its territory.

"[T]he soil and sovereignty within their acknowledged
limits were as much theirs at the declaration of
independence as at this hour."

Thus, unequivocally, in July, 1776, the new States possessed all
sovereignty, power, and jurisdiction over all the soil and persons
in their respective territorial limits.

This condition of supreme sovereignty of each State over all
property and persons within the borders thereof continued
notwithstanding the adoption of the Articles of Confederation. In
Article II of that document, it was expressly stated:

"Article II. Each state retains its sovereignty,
freedom, and independence, and every Power, Jurisdiction
and right, which is not by this confederation expressly
delegated to the United States, in Congress assembled."

As the history of the confederation government demonstrated, each
State was indeed sovereign and independent to the degree that it
made the central government created by the confederation fairly
ineffectual. These defects of the confederation government
strained the relations between and among the States and the remedy
became the calling of a constitutional convention.

The representatives which assembled in Philadelphia in May,
1787, to attend the Constitutional Convention met for the primary
purpose of improving the commercial relations among the States,
although the product of the Convention produced more than this.
But, no intention was demonstrated for the States to surrender in
any degree the jurisdiction so possessed by the States at that
time, and indeed the Constitution as finally drafted continued the
same territorial jurisdiction of the States as existed under the
Articles of Confederation. The essence of this retention of state
jurisdiction was embodied in Art. I, Sec. 8, Cl. 17 of the U.S.
Constitution, which read as follows:

"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

The reason for the inclusion of this clause in the
Constitution was and is obvious. Under the Articles of
Confederation, the States retained full and complete jurisdiction
over lands and persons within their borders. The Congress under
the Articles was merely a body which represented and acted as
agents of the separate States for external affairs, and had no
jurisdiction within the States. This defect in the Articles made
the Confederation Congress totally dependent upon any given State
for protection, and this dependency did in fact cause embarrassment
for that Congress. During the Revolutionary War, while the
Congress met in Philadelphia, a body of mutineers from the
Continental Army surrounded the Congress and chastised and insulted
the members thereof. The governments of both Philadelphia and
Pennsylvania proved themselves powerless to remedy the situation,
and the Congress was forced to flee first to Princeton, New Jersey,
and finally to Annapolis, Maryland. Thus, this clause was
inserted into the Constitution to give jurisdiction to Congress
over its capital, and such other places as Congress might purchase
for forts, magazines, arsenals, and other needful buildings wherein
the State ceded jurisdiction of such lands to the federal
government. Other than in these areas, this clause of the
Constitution did not operate to cede further jurisdiction to the
federal government, and jurisdiction over unceded areas remained
within the States.

While there had been no real provisions in the Articles which
permitted the Confederation Congress to acquire property and
possess exclusive jurisdiction over such property, the above clause
filled an essential need by permitting the federal government to
acquire land for the seat of government and other purposes from
certain of the States. Such possessions were deemed essential to
enable the United States to perform the powers conveyed by the
Constitution, and a cession of lands by any particular State would
grant exclusive jurisdiction of such lands to Congress. Perhaps
the most cogent reasons and explanations for this clause in the
Constitution were set forth in Essay No. 43 of The Federalist:

"The indispensable necessity of complete authority at the
seat of government carries its own evidence with it. It
is a power exercised by every legislature of the Union,
I might say of the world, by virtue of its general
supremacy. Without it not only the public authority
might be insulted and its proceedings interrupted with
impunity, but a dependence of the members of the general
government on the State comprehending the seat of the
government for protection in the exercise of their duty
might bring on the national councils an imputation of awe
or influence equally dishonorable to the government and
dissatisfactory to the other members of the Confederacy.
This consideration has the more weight as the gradual
accumulation of public improvements at the stationary
residence of the government would be both too great a
public pledge to be left in the hands of a single State,
and would create so many obstacles to a removal of the
government, as still further to abridge its necessary
independence. The extent of this federal district is
sufficiently circumscribed to satisfy every jealousy of
an opposite nature. And as it is to be appropriated to
this use with the consent of the State ceding it; as the
State will no doubt provide in the compact for the rights
and the consent of the citizens inhabiting it; as the
inhabitants will find sufficient inducements of interest
to become willing parties to the cession; as they will
have had their voice in the election of the government
which is to exercise authority over them; as a municipal
legislature for local purposes, derived from their own
suffrages, will of course be allowed them; and as the
authority of the legislature of the State, and of the
inhabitants of the ceded part of it, to concur in the
cession will be derived from the whole people of the
State in their adoption of the Constitution, every
imaginable objection seems to be obviated.

"The necessity of a like authority over forts, magazines,
etc., established by the general government, is not less
evident. The public money expended on such places, and
the public property deposited in them, require that they
should be exempt from the authority of the particular
State. Nor would it be proper for the places on which
the security of the entire Union may depend to be in any
degree dependent on a particular member of it. All
objections and scruples are here also obviated by
requiring the concurrence of the States concerned in
every such establishment."

Since the time of the ratification and implementation of the
present U.S. Constitution, the U.S. Supreme Court and all lower
courts have had many opportunities to construe and apply the above
provision of the Constitution. And the essence of all these
decisions is that the States of this nation have exclusive
jurisdiction of property and persons located within their borders,
excluding such lands and persons residing thereon which have been
ceded to the United States.

Perhaps one of the earliest decisions on this point was United
States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818), which involved a
federal prosecution for a murder committed on board the Warship,
Independence, anchored in the harbor of Boston, Massachusetts. The
defense complained that only the state had jurisdiction to
prosecute and argued that the federal Circuit Courts had no
jurisdiction of this crime supposedly committed within the federal
government's admiralty jurisdiction. In argument before the
Supreme Court, counsel for the United States admitted as follows:

"The exclusive jurisdiction which the United States have
in forts and dock-yards ceded to them, is derived from
the express assent of the states by whom the cessions are
made. It could be derived in no other manner; because
without it, the authority of the state would be supreme
and exclusive therein," 3 Wheat., at 350, 351.

In holding that the State of Massachusetts had jurisdiction over
the crime, the Court held:

"What, then, is the extent of jurisdiction which a state

"We answer, without hesitation, the jurisdiction of a
state is co-extensive with its territory; co-extensive
with its legislative power," 3 Wheat., at 386, 387.

"The article which describes the judicial power of the
United States is not intended for the cession of
territory or of general jurisdiction. ... Congress has
power to exercise exclusive jurisdiction over this
district, and 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.

"It is observable that the power of exclusive legislation
(which is jurisdiction) is united with cession of
territory, which is to be the free act of the states. It
is difficult to compare the two sections together,
without feeling a conviction, not to be strengthened by
any commentary on them, that, in describing the judicial
power, the framers of our constitution had not in view
any cession of territory; or, which is essentially the
same, of general jurisdiction," 3 Wheat., at 388.

Thus in Bevans, the Court established a principle that federal
jurisdiction extends only over the areas wherein it possesses the
power of exclusive legislation, and this is a principle
incorporated into all subsequent decisions regarding the extent of
federal jurisdiction. To hold otherwise would destroy the purpose,
intent and meaning of the entire U.S. Constitution.

The decision in Bevans was closely followed by decisions made
in two state courts and one federal court within the next two
years. In Commonwealth v. Young, Brightly, N.P. 302, 309 (Pa.
1818), the Supreme Court of Pennsylvania was presented with the
issue of whether lands owned by the United States for which
Pennsylvania had never ceded jurisdiction had to be sold pursuant
to state law. In deciding that the state law of Pennsylvania
exclusively controlled this sale of federal land, the Court held:

"The legislation and authority of congress is confined to
cessions by particular states for the seat of government,
and purchases made by consent of the legislature of the
state, for the purpose of erecting forts. The
legislative power and exclusive jurisdiction remained in
the several states, of all territory within their limits,
not ceded to, or purchased by, congress, with the assent
of the state legislature, to prevent the collision of
legislation and authority between the United States and
the several states."

A year later, the Supreme Court of New York was presented with
the issue of whether the State of New York had jurisdiction over a
murder committed at Fort Niagara, a federal fort. In People v.
Godfrey, 17 Johns. 225, 233 (N.Y. 1819), that court held that the
fort was subject to the jurisdiction of the State since the lands
therefore had not been ceded to the United States. The rationale
of its opinion stated:

"To oust this state of its jurisdiction to support and
maintain its laws, and to punish crimes, it must be shown
that an offense committed within the acknowledged limits
of the state, is clearly and exclusively cognizable by
the laws and courts of the United States. In the case
already cited, Chief Justice Marshall observed, that to
bring the offense within the jurisdiction of the courts
of the union, it must have been committed out of the
jurisdiction of any state; it is not (he says,) the
offence committed, but the place in which it is
committed, which must be out of the jurisdiction of the

The case relied upon by this court was U.S. v. Bevans, supra.

At about the same time that the New York Supreme Court
rendered its opinion in Godfrey, a similar fact situation was
before a federal court, the only difference being that the murder
committed in the case occurred on land which had been ceded to the
United States. In United States v. Cornell, 25 Fed.Cas. 646, 648
No. 14,867 (C.C.D.R.I. 1819), the court held that the case fell
within federal jurisdiction, describing such jurisdiction as

"But although the United States may well purchase and
hold lands for public purposes, within the territorial
limits of a state, this does not of itself oust the
jurisdiction or sovereignty of such State over the lands
so purchased. It remains until the State has
relinquished its authority over the land either expressly
or by necessary implication.

"When therefore a purchase of land for any of these
purposes is made by the national government, and the
State Legislature has given its consent to the purchase,
the land so purchased by the very terms of the
constitution ipso facto falls within the exclusive
legislation of Congress, and the State jurisdiction is
completely ousted."

Almost 18 years later, the U.S. Supreme Court was again
presented with a case involving the distinction between State and
federal jurisdiction. In New Orleans v. United States, 35 U.S. (10
Pet.) 662, 737 (1836), the United States claimed title to property
in New Orleans likewise claimed by the city. After holding that
title to the subject lands was owned by the city, the Court
addressed the question of federal jurisdiction and stated:

"Special provision is made in the Constitution for the
cession of jurisdiction from the States over places where
the federal government shall establish forts or other
military works. And it is only in these places, or in
the territories of the United States, where it can
exercise a general jurisdiction."

In New York v. Miln, 36 U.S. (11 Pet.) 102 (1837), the
question before the Court involved the attempt by the City of New
York to assess penalties against the master of a ship for his
failure to make a report as to the persons his ship brought to New
York. As against the master's contention that the act was
unconstitutional and that New York had no jurisdiction in the
matter, the Court held:

"If we look at the place of its operation, we find it to
be within the territory, and, therefore, within the
jurisdiction of New York. If we look at the person on
whom it operates, he is found within the same territory
and jurisdiction," 36 U.S., at 133.

"They are these: that a State has the same undeniable
and unlimited jurisdiction over all persons and things
within its territorial limits, as any foreign nation,
where that jurisdiction is not surrendered or restrained
by the Constitution of the United States. That, by
virtue of this, it is not only the right, but the bounden
and solemn duty of a State, to advance the safety,
happiness and prosperity of its people, and to provide
for its general welfare, by any and every act of
legislation which it may deem to be conducive to these
ends; where the power over the particular subject, or the
manner of its exercise is not surrendered or restrained,
in the manner just stated. That all those powers which
relate to merely municipal legislation, or what may,
perhaps, more properly be called internal police, are not
thus surrendered or restrained; and that, consequently,
in relation to these, the authority of a State is
complete, unqualified and exclusive," 36 U.S., at 139.

Some eight years later, in Pollard v. Hagan, 44 U.S. (3 How.)
212 (1845), the question of federal jurisdiction was once again
before the Court. This case involved a contest of the title to
real property, with one of the parties claiming a right to the
disputed property via a U.S. patent; the lands in question were
situated in Mobile, Alabama, adjacent to Mobile Bay. In discussing
the subject of federal jurisdiction, the Court held:

"We think a proper examination of this subject will show
that the United States never held any municipal
sovereignty, jurisdiction, or right of soil in and to the
territory, of which Alabama or any of the new States were
formed," 44 U.S., at 221.

"[B]ecause, the United States have no constitutional
capacity to exercise municipal jurisdiction, sovereignty,
or eminent domain, within the limits of a State or
elsewhere, except in the cases in which it is expressly
granted," 44 U.S., at 223.

"Alabama is therefore entitled to the sovereignty and
jurisdiction over all the territory within her limits,
subject to the common law," 44 U.S., at 228, 229.

The single most important case regarding the subject of
federal jurisdiction appears to be Fort Leavenworth R. Co. v. Lowe,
114 U.S. 525, 531, 5 S.Ct. 995 (1885), which sets forth the law on
this point fully. There, the railroad company property which
passed through the Fort Leavenworth federal enclave was being
subjected to taxation by Kansas, and the company claimed an
exemption from state taxation. In holding that the railroad
company's property could be taxed, the Court carefully explained
federal jurisdiction within the States:

"The consent of the states to the purchase of lands
within them for the special purposes named, is, however,
essential, under the constitution, to the transfer to the
general government, with the title, of political
jurisdiction and dominion. Where lands are acquired
without such consent, the possession of the United
States, unless political jurisdiction be ceded to them in
some other way, is simply that of an ordinary proprietor.
The property in that case, unless used as a means to
carry out the purposes of the government, is subject to
the legislative authority and control of the states
equally with the property of private individuals."

Thus, the cases decided within the 19th century clearly
disclosed the extent and scope of both State and federal
jurisdiction. In essence, these cases, among many others, hold
that the jurisdiction of any particular State is co-extensive with
its borders or territory, and all persons and property located or
found therein are subject to such jurisdiction; this jurisdiction
is superior. Federal jurisdiction results only from a conveyance
of state jurisdiction to the federal government for lands owned or
otherwise possessed by the federal government, and thus federal
jurisdiction is extremely limited in nature. And there is no
federal jurisdiction if there be no grant or cession of
jurisdiction by the State to the federal government. Therefore,
federal territorial jurisdiction exists only in Washington, D.C.,
the federal enclaves within the States, and the territories and
possessions of the United States.

The above principles of jurisdiction established in the last
century continue their vitality today with only one minor
exception. In the last century, the cessions of jurisdiction by
States to the federal government were by legislative acts which
typically ceded full jurisdiction to the federal government, thus
placing into the hands of the federal government the troublesome
problem of dealing with and governing scattered, localized federal
enclaves which had been totally surrendered by the States. With
the advent in this century of large federal works projects and
national parks, the problems regarding management of these areas by
the federal government were magnified. During the last century, it
was thought that if a State ceded jurisdiction to the federal
government, the cession granted full and complete jurisdiction.
But, with the ever increasing number of separate tracts of land
falling within the jurisdiction of the federal government in this
century, it was obviously determined by both federal and state
public officers that the States should retain greater control over
these ceded lands, and the courts have acknowledged the
constitutionality of varying degrees of state jurisdiction and
control over lands so ceded.

Perhaps one of the first cases to acknowledge the proposition
that a State could retain a degree of jurisdiction over property
ceded to the federal government was Surplus Trading Co. v. Cook,
281 U.S. 647, 50 S.Ct. 455 (1930). In this case, a state attempt
to assess an ad valorem tax on Army blankets located within a
federal army camp was found invalid and beyond the state's
jurisdiction. But, in regards to the proposition that a State
could make a qualified cession of jurisdiction to the federal
government, the Court held:

"[T]he state undoubtedly may cede her jurisdiction to the
United States and may make the cession either absolute or
qualified as to her may appear desirable, provided the
qualification is consistent with the purposes for which
the reservation is maintained and is accepted by the
United States. And, where such a cession is made and
accepted, it will be determinative of the jurisdiction of
both the United States and the state within the
reservation," 281 U.S., at 651, 652.

Two cases decided in 1937 by the U.S. Supreme Court further
clarify the constitutionality of a reservation of any degree of
state jurisdiction over lands ceded to the jurisdiction of the
United States. In James v. Dravo Contracting Company, 302 U.S.
134, 58 S.Ct. 208 (1937), the State of West Virginia sought to
impose a tax upon the gross receipts of the company arising from a
contract which it had made with the United States to build some
dams on rivers. One of the issues involved in this case was the
validity of the state tax imposed on the receipts derived by the
company from work performed on lands to which the State had ceded
"concurrent" jurisdiction to the United States. In the Court's
opinion, it held that a State could reserve and qualify any cession
of jurisdiction for lands owned by the United States; since the
State had done so here, the Court upheld this part of the
challenged tax notwithstanding a partial cession of jurisdiction to
the U.S. A similar result occurred in Silas Mason Co. v. Tax
Commission of State of Washington, 302 U.S. 186, 58 S.Ct. 233
(1937). Here, the United States was undertaking the construction
of several dams on the Columbia River in Washington, and had
purchased the lands necessary for the project. Silas Mason
obtained a contract to build a part of the Grand Coulee Dam, but
filed suit challenging the Washington income tax when that State
sought to impose such tax on the contract proceeds. Mason's
argument that the federal government had exclusive jurisdiction
over both the lands and such contract was not upheld by either the
Supreme Court of Washington or the U.S. Supreme Court. The latter
Court held that none of the lands owned by the U.S. were within its
jurisdiction and thus Washington clearly had jurisdiction to impose
the challenged tax; see also Wilson v. Cook, 327 U.S. 474, 66 S.Ct.
663 (1946).

Some few years later in 1943, the Supreme Court was again
presented with similar taxation and jurisdiction issues; the facts
in these two cases were identical with the exception that one
clearly involved lands ceded to the jurisdiction of the United
States. This single difference caused directly opposite results in
both cases. In Pacific Coast Dairy v. Department of Agriculture of
California, 318 U.S. 285, 63 S.Ct. 628 (1943), the question
involved the applicability of state law to a contract entered into
and performed on a federal enclave to which jurisdiction had been
ceded to the United States. During World War II, California passed
a law setting a minimum price for the sale of milk, which law
imposed penalties for sales made below the regulated price. Here,
Pacific Coast Dairy consummated a contract on Moffett Field, a
federal enclave within the exclusive jurisdiction of the United
States, to sell milk to such federal facility at below the
regulated price. When this occurred, California sought to impose
a penalty for what it perceived as a violation of state law. But,
the U.S. Supreme Court refused to permit the enforcement of the
California law, holding that the contract was made and performed in
a territory outside the jurisdiction of California and within the
jurisdiction of the United States, a place where this law didn't
apply. Thus, in this case, the existence of federal jurisdiction
was the foundation for the ruling. However, in Penn Dairies v.
Milk Control Commission of Pennsylvania, 318 U.S. 261, 63 S.Ct. 617
(1943), an opposite result was reached on almost identical facts.
Here, Pennsylvania likewise had a law which regulated the price of
milk and penalized sales of milk below the regulated price. During
World War II, the United States leased some land from Pennsylvania
for the construction of a military camp; since the land was leased,
Pennsylvania did not cede jurisdiction to the United States. When
Penn Dairies sold milk to the military facility for a price below
the regulated price, the Commission sought to impose the penalty.
In this case, since there was no federal jurisdiction, the Supreme
Court found that the state law applied and permitted the imposition
of the penalty. Thus, these two cases clearly show the different
results which can occur with the presence or absence of federal

A final point which must be made regarding federal
jurisdiction involves the point as to when such jurisdiction ends
or ceases. This point was considered in S.R.A. v. Minnesota, 327
U.S. 558, 66 S.Ct. 749 (1946), which involved the power of a State
to tax the real property interest of a purchaser of land sold by
the United States. Here, a federal post office building was sold
to S.R.A. pursuant to a real estates sale contract, which provided
that title would pass only after the purchase price had been paid.
In refuting the argument of S.R.A. that the ad valorem tax on its
equitable interest in the property was really an unlawful tax on
U.S. property, the Court held:

"In the absence of some such provisions, a transfer of
property held by the United States under state cessions
pursuant to Article I, Section 8, Clause 17, of the
Constitution would leave numerous isolated islands of
federal jurisdiction, unless the unrestricted transfer of
the property to private hands is thought without more to
revest sovereignty in the states. As the purpose of
Clause 17 was to give control over the sites of
governmental operations to the United States, when such
control was deemed essential for federal activities, it
would seem that the sovereignty of the United States
would end with the reason for its existence and the
disposition of the property. We shall treat this case as
though the Government's unrestricted transfer of property
to non-federal hands is a relinquishment of the exclusive
legislative power," 327 U.S., at 563, 564.

Thus, it appears clearly that once any property within the
exclusive jurisdiction of the United States is no longer utilized
by that government for governmental purposes, and the title or any
interest therein is conveyed to private interests, the jurisdiction
of the federal government ceases and jurisdiction once again
reverts to the State.

The above principles regarding the distinction between State
and federal jurisdiction continue through today; see Paul v. United
States, 371 U.S. 245, 83 S.Ct. 426 (1963), and United States v.
State Tax Commission of Mississippi, 412 U.S. 363, 93 S.Ct. 2183
(1973). And what was definitely decided in the beginning days of
this Republic regarding the extent, scope, and reach of each of
these two distinct jurisdictions remains unchanged and forms the
foundation and basis for the smooth workings of state governmental
systems in conjunction with the federal government. Without such
jurisdictional principles which form a clear boundary between the
jurisdiction of the States and the United States, our federal
governmental system would have surely met its demise long before

In summary, jurisdiction of the States is essentially the same
as that possessed by the States which were leagued together under
the Articles of Confederation. The confederated States possessed
absolute, complete and full jurisdiction over property and persons
located within their borders. It is hypocritical to assume or
argue that these States, which had absolved and banished the
centralized power and jurisdiction of the English Parliament and
Crown over them by the Declaration of Independence, would shortly
thereafter cede comparable power and jurisdiction to the
Confederation Congress. They did not and they closely and
jealously guarded their own rights, powers and jurisdiction. When
the Articles were replaced by the Constitution, the intent and
purpose of the States was to retain their same powers and
jurisdiction, with a small concession of jurisdiction to the United
States for lands found essential for the operation of that
government. However, even this provision did not operate to
instantly change any aspect of state jurisdiction, it only
permitted its future operation wherein any State, by its own
volition, should choose to cede jurisdiction to the United States.

By the adoption of the Constitution, the States jointly
surrendered some 17 specific and well defined powers to the federal
Congress, which related strictly to external affairs of the States.
Any single power, or even several powers combined, do not operate
in a fashion as to invade or divest a State of its jurisdiction.
As against a single State, the remainder of the States under the
Constitution have no right to jurisdiction within the single State
absent its consent.

The only provision in the Constitution which permits
jurisdiction to be vested in the United States is found in Art. I,
Sec. 8, Cl. 17, which provides the mechanism for a voluntary cession
of jurisdiction from any State to the United States. When the
Constitution was adopted, the United States had jurisdiction over
no lands within the States, possessing jurisdiction only in the
lands encompassed in the Northwest Territories. Shortly
thereafter, Maryland and Virginia ceded jurisdiction to the United
States for Washington, D.C. As time progressed thereafter, the
States at various times ceded jurisdiction to federal enclaves
within the States. Today, the territorial jurisdiction of the
United States is found only in such ceded areas, which encompass
Washington, D.C., the federal enclaves within the States, and such
territories and possessions which may be now owned by the United

The above conclusion is not the mere opinion of the author of
this brief, but it is likewise that of the federal government
itself. In June 1957, the government of the United States
published a work entitled Jurisdiction Over Federal Areas Within
The States: Report of the Interdepartmental Committee for the
Study of Jurisdiction Over Federal Areas Within the States, Part
II, which report is the definitive study on this issue. Therein,
the Committee stated:

"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
.... 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," Id., at 41.

"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 by
the State, subject to non-interference by the State with
Federal functions," Id., at 45.

"The Federal Government cannot, by unilateral action on
its part, acquire legislative jurisdiction over any area
within the exterior boundaries of a State," Id., at 46.

"On the other hand, while the Federal Government has
power under various provisions of the Constitution to
define, and prohibit as criminal, certain acts or
omissions occurring anywhere in the United States, it has
no power to punish for various other crimes, jurisdiction
over which is retained by the States under our Federal-State
system of government, unless such crime occurs on
areas as to which legislative jurisdiction has been
vested in the Federal Government," Id., at 107.

Thus, from an abundance of case law, buttressed by this lengthy and
definitive government treatise on this issue, the "jurisdiction of
the United States" is carefully circumscribed and defined as a very
precise portion of America. The United States is one of the 51
jurisdictions existing on this continent, excluding Canada and its


It is a well established principle of law that all federal
"legislation applies only within the territorial jurisdiction of
the United States unless a contrary intent appears;" see Caha v.
United States, 152 U.S. 211, 215, 14 S.Ct. 513 (1894); American
Banana Company v. United Fruit Company, 213 U.S. 347, 357, 29 S.Ct.
511 (1909); United States v. Bowman, 260 U.S. 94, 97, 98, 43 S.Ct.
39 (1922); Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct.
252 (1932); Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575
(1949); United States v. Spelar, 338 U.S. 217, 222, 70 S.Ct. 10
(1949); and United States v. First National City Bank, 321 F.2d 14,
23 (2nd Cir. 1963). And this principle of law is expressed in a
number of cases from the federal appellate courts; see McKeel v.
Islamic Republic of Iran, 722 F.2d 582, 589 (9th Cir. 1983)
(holding the Foreign Sovereign Immunities Act as territorial);
Meredith v. United States, 330 F.2d 9, 11 (9th Cir. 1964) (holding
the Federal Torts Claims Act as territorial); United States v.
Cotroni, 527 F.2d 708, 711 (2nd Cir. 1975) (holding federal wiretap
laws as territorial); Stowe v. Devoy, 588 F.2d 336, 341 (2nd Cir.
1978); Cleary v. United States Lines, Inc., 728 F.2d 607, 609 (3rd
Cir. 1984) (holding federal age discrimination laws as
territorial); Thomas v. Brown & Root, Inc., 745 F.2d 279, 281 (4th
Cir. 1984) (holding same as Cleary, supra); United States v.
Mitchell, 553 F.2d 996, 1002 (5th Cir. 1977) (holding marine
mammals protection act as territorial); Pfeiffer v. William
Wrigley, Jr., Co., 755 F.2d 554, 557 (7th Cir. 1985) (holding age
discrimination laws as territorial); Airline Stewards &
Stewardesses Assn. v. Northwest Airlines, Inc., 267 F.2d 170, 175
(8th Cir. 1959) (holding Railway Labor Act as territorial);
Zahourek v. Arthur Young and Co., 750 F.2d 827, 829 (10th Cir.
1984) (holding age discrimination laws as territorial); Commodities
Futures Trading Comm. v. Nahas, 738 F.2d 487, 493 (D.C.Cir. 1984)
(holding commission's subpoena power under federal law as
territorial); Reyes v. Secretary of H.E.W., 476 F.2d 910, 915
(D.C.Cir. 1973) (holding administration of Social Security Act as
territorial); and Schoenbaum v. Firstbrook, 268 F.Supp. 385, 392
(S.D.N.Y. 1967) (holding securities act as territorial). This was
perhaps stated best in Caha v. United States, 152 U.S., at 215,
where the Supreme Court stated as follows:

"The laws of Congress in respect to those matters do not
extend into the territorial limits of the states, but
have force only in the District of Columbia, and other
places that are within the exclusive jurisdiction of the
national government."

But, because of statutory language, certain federal drug laws
operate extra-territorially; see United States v. King, 552 F.2d
833, 851 (9th Cir. 1976). The United States has territorial
jurisdiction only in Washington, D.C., the federal enclaves within
the States, and in the territories and insular possessions of the
United States. However, it has no territorial jurisdiction over
non-federally owned areas inside the territorial jurisdiction of
the States within the American Union. And this proposition of law
is supported by literally hundreds of cases.

As a general rule, the power of the United States to
criminally prosecute is, for the most part, confined to offenses
committed within "its jurisdiction". This is born out simply by
examination of Title 18, U.S.C. Section 5 thereof defines the term
"United States" in clear jurisdictional terms. Section 7 contains
the fullest statutory definition of the "jurisdiction of the United
States." The U.S. District Courts have jurisdiction of offenses
occurring within the "United States" pursuant to Title 18, U.S.C.,
Sec. 3231.

Examples of this proposition are numerous. In Pothier v.
Rodman, 291 F. 311 (1st Cir. 1923), the question involved whether
a murder committed at Camp Lewis Military Reservation in the State
of Washington was a federal crime. Here, the murder was committed
more than a year before the U.S. acquired a deed for the property
in question. Pothier was arrested and incarcerated in Rhode Island
and filed a habeas corpus petition seeking his release on the
grounds that the federal courts had no jurisdiction over an offense
not committed in U.S. jurisdiction. The First Circuit agreed that
there was no federal jurisdiction and ordered his release. But, on
appeal to the U.S. Supreme Court, in Rodman v. Pothier, 264 U.S.
399, 44 S.Ct. 360 (1924), that Court reversed; although agreeing
with the jurisdictional principles enunciated by the First Circuit,
it held that only the federal court in Washington State could hear
that issue. In United States v. Unzeuta, 35 F.2d 750 (8th Cir.
1929), the Eighth Circuit held that the U.S. had no jurisdiction
over a murder committed in a railroad car at Fort Robinson, the
state cession statute being construed as not including railroad
rights-of-way. This decision was reversed in United States v.
Unzeuta, 281 U.S. 138, 50 S.Ct. 284 (1930), the court holding that
the U.S. did have jurisdiction over the railroad rights-of-way in
Fort Robinson. In Bowen v. Johnson, 97 F.2d 860 (9th Cir. 1938),
the question presented was whether jurisdiction over an offense
prosecuted in federal court could be raised in a petition for
habeas corpus. The denial of Bowen's petition was reversed in
Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442 (1939), the Court
concluding that such a jurisdictional challenge could be raised in
a habeas corpus petition. But, the Court then addressed the issue,
found that the U.S. both owned the property in question and had a
state legislative grant ceding jurisdiction to the United States,
thus there was jurisdiction in the United States to prosecute
Bowen. But, if jurisdiction is not vested in the United States
pursuant to statute, there is no jurisdiction; see Adams v. United
States, 319 U.S. 312, 63 S.Ct. 1122 (1943).

And the lower federal courts also require the presence of
federal jurisdiction in criminal prosecutions. In Kelly v. United
States, 27 F. 616 (D.Me. 1885), federal jurisdiction of a
manslaughter committed at Fort Popham was upheld when it was shown
that the U.S. owned the property where the offense occurred and the
state had ceded jurisdiction. In United States v. Andem, 158 F.
996 (D.N.J. 1908), federal jurisdiction for a forgery offense was
upheld on a showing that the United States owned the property where
the offense was committed and the state had ceded jurisdiction of
the property to the U.S. In United States v. Penn, 48 F. 669
(E.D.Va. 1880), since the U.S. did not have jurisdiction over
Arlington National Cemetery, a federal larceny prosecution was
dismissed. In United States v. Lovely, 319 F.2d 673 (4th Cir.
1963), federal jurisdiction was found to exist by U.S. ownership of
the property and a state cession of jurisdiction. In United States
v. Watson, 80 F.Supp. 649, 651 (E.D.Va. 1948), federal criminal
charges were dismissed, the court stating as follows:

"Without proof of the requisite ownership or possession
of the United States, the crime has not been made out."

In Brown v. United States, 257 F. 46 (5th Cir. 1919), federal
jurisdiction was upheld on the basis that the U.S. owned the
post-office site where a murder was committed and the state had ceded
jurisdiction; see also England v. United States, 174 F.2d 466 (5th
Cir. 1949); Krull v. United States, 240 F.2d 122 (5th Cir. 1957);
Hudspeth v. United States, 223 F.2d 848 (5th Cir. 1955); and Gainey
v. United States, 324 F.2d 731 (5th Cir. 1963). In United States
v. Townsend, 474 F.2d 209 (5th Cir. 1973), a conviction for
receiving stolen property was reversed when the court reviewed the
record and learned that there was absolutely no evidence disclosing
that the defendant had committed this offense within the
jurisdiction of the United States. And in United States v. Benson,
495 F.2d 475, 481 (5th Cir. 1974), in finding federal jurisdiction
for a robbery committed at Fort Rucker, the court stated:

"It is axiomatic that the prosecution must always prove
territorial jurisdiction over a crime in order to sustain
a conviction therefor."

In two Sixth Circuit cases, United States v. Tucker, 122 F.
518 (W.D.Ky. 1903), a case involving an assault committed at a
federal dam, and United States v. Blunt, 558 F.2d 1245 (6th Cir.
1977), a case involving an assault within a federal penitentiary,
jurisdiction was sustained by finding that the U.S. owned the
property in question and the state involved had ceded jurisdiction.
In In re Kelly, 71 F. 545 (E.D.Wis. 1895), a federal assault charge
was dismissed when the court held that the state cession statute in
question was not adequate to convey jurisdiction of the property in
question to the United States. In United States v. Johnson, 426
F.2d 1112 (7th Cir. 1970), a case involving a federal burglary
prosecution, federal jurisdiction was sustained upon the showing of
U.S. ownership and cession. And cases from the Eighth and Tenth
Circuits likewise require the same elements to be shown to
demonstrate the presence of federal jurisdiction; see United States
v. Heard, 270 F.Supp. 198 (W.D.Mo. 1967); United States v.
Redstone, 488 F.2d 300 (8th Cir. 1973); United States v. Goings,
504 F.2d 809 (8th Cir. 1974) (demonstrating loss of jurisdiction);
Hayes v. United States, 367 F.2d 216 (10th Cir. 1966); United
States v. Carter, 430 F.2d 1278 (10th Cir. 1970); Hall v. United
States, 404 F.2d 1367 (10th Cir. 1969); and United States v.
Cassidy, 571 F.2d 534 (10th Cir. 1978).

Of all the circuits, the Ninth Circuit has addressed
jurisdictional issues more than any of the rest. In United States
v. Bateman, 34 F. 86 (N.D.Cal. 1888), it was determined that the
United States did not have jurisdiction to prosecute for a murder
committed at the Presidio because California had never ceded
jurisdiction; see also United States v. Tully, 140 F. 899 (D.Mon.
1905). But later, California ceded jurisdiction for the Presidio
to the United States, and it was held in United States v. Watkins,
22 F.2d 437 (N.D.Cal. 1927), that this enabled the U.S. to maintain
a murder prosecution; see also United States v. Holt, 168 F. 141
(W.D.Wash. 1909), United States v. Lewis, 253 F. 469 (S.D.Cal.
1918), and United States v. Wurtzbarger, 276 F. 753 (D.Or. 1921).
Because the U.S. owned and had a state cession of jurisdiction for
Fort Douglas in Utah, it was held that the U.S. had jurisdiction
for a rape prosecution in Rogers v. Squier, 157 F.2d 948 (9th Cir.
1946). But, without a cession, the U.S. has no jurisdiction; see
Arizona v. Manypenny, 445 F.Supp. 1123 (D.Ariz. 1977).

The above cases from the U.S. Supreme Court and federal
appellate courts set forth the rule that in criminal prosecutions,
the government, as the party seeking to establish the existence of
federal jurisdiction, must prove U.S. ownership of the property in
question and a state cession of jurisdiction. This same rule
manifests itself in state cases. State courts are courts of
general jurisdiction and in a state criminal prosecution, the state
must only prove that the offense was committed within the state and
a county thereof. If a defendant contends that only the federal
government has jurisdiction over the offense, he, as proponent for
the existence of federal jurisdiction, must likewise prove U.S.
ownership of the property where the crime was committed and state
cession of jurisdiction.

Examples of the operation of this principle are numerous. In
Arizona, the State has jurisdiction over federal lands in the
public domain, the state not having ceded jurisdiction of that
property to the U.S.; see State v. Dykes, 114 Ariz. 592, 562 P.2d
1090 (1977). In California, if it is not proved by a defendant in
a state prosecution that the state has ceded jurisdiction, it is
presumed the state does have jurisdiction over a criminal offense;
see People v. Brown, 69 Cal. App.2d 602, 159 P.2d 686 (1945). If
the cession exists, the state has no jurisdiction; see People v.
Mouse, 203 Cal. 782, 265 P. 944 (1928). In Montana, the state has
jurisdiction over property if it is not proved there is a state
cession of jurisdiction to the U.S.; see State ex rel Parker v.
District Court, 147 Mon. 151, 410 P.2d 459 (1966); the existence of
a state cession of jurisdiction to the U.S. ousts the state of
jurisdiction; see State v. Tully, 31 Mont. 365, 78 P. 760 (1904).
The same applies in Nevada; see State v. Mack, 23 Nev. 359, 47 P.
763 (1897), and Pendleton v. State, 734 P.2d 693 (Nev., 1987); it
applies in Oregon (see State v. Chin Ping, 91 Or. 593, 176 P. 188
(1918) and State v. Aguilar, 85 Or.App. 410, 736 P.2d 620 (1987));
and in Washington (see State v. Williams, 23 Wash.App. 694, 598
P.2d 731 (1979)).

In People v. Hammond, 1 Ill.2d 65, 115 N.E.2d 331 (1953), a
burglary of an I.R.S. office was held to be within state
jurisdiction, the court holding that the defendant was required to
prove existence of federal jurisdiction by U.S. ownership of the
property and state cession of jurisdiction. In two cases from
Michigan, larcenies committed at U.S. post-offices which were
rented were held to be within state jurisdiction; see People v.
Burke, 161 Mich. 397, 126 N.W. 446 (1910) and People v. Van Dyke,
276 Mich. 32, 267 N.W. 778 (1936); see also In re Kelly, 311 Mich.
596, 19 N.W.2d 218 (1945). In Kansas City v. Garner, 430 S.W.2d
630 (Mo.App. 1968), state jurisdiction over a theft offense
occurring in a federal building was upheld, and the court stated
that a defendant had to show federal jurisdiction by proving U.S.
ownership of the building and a cession of jurisdiction from the
state to the United States. A similar holding was made for a theft
at a U.S. missile site in State v. Rindall, 146 Mon. 64, 404 P.2d
327 (1965). In Pendleton v. State, 734 P.2d 693 (Nev. 1987), the
state court was held to have jurisdiction over a D.U.I. committed
on federal lands, the defendant having failed to show U.S.
ownership and state cession of jurisdiction.

In People v. Gerald, 40 Misc.2d 819, 243 N.Y.S.2d 1001 (1963),
the state was held to have jurisdiction of an assault at a U.S.
post-office since the defendant did not meet his burden of showing
presence of federal jurisdiction; and because a defendant failed to
prove title and jurisdiction in the United States for an offense
committed at a customs station, state jurisdiction was upheld in
People v. Fisher, 97 A.D.2d 651, 469 N.Y.S.2d 187 (A.D. 3 Dept.
1983). The proper method of showing federal jurisdiction in state
court is demonstrated by the decision in People v. Williams, 136
Misc.2d 294, 518 N.Y.S.2d 751 (1987). This rule was likewise
enunciated in State v. Burger, 33 Ohio App.3d 231, 515 N.E.2d 640
(1986), in a case involving a D.U.I. offense committed on a road
near a federal arsenal.

In Kuerschner v. State, 493 P.2d 1402 (Okl.Cr.App. 1972), the
state was held to have jurisdiction of a drug sales offense
occurring at an Air Force Base, the defendant not having attempted
to prove federal jurisdiction by showing title and jurisdiction of
the property in question in the United States; see also Towry v.
State, 540 P.2d 597 (Okl.Cr.App. 1975). Similar holdings for
murders committed at U.S. post-offices were made in State v. Chin
Ping, 91 Or. 593, 176 P. 188 (1918), and in United States v. Pate,
393 F.2d 44 (7th Cir., 1968). Another Oregon case, State v.
Aguilar, 85 Or.App. 410, 736 P.2d 620 (1987), demonstrates this
rule. And finally, in Curry v. State, 111 Tex. Cr. 264, 12 S.W.2d
796 (1928), it was held that, in the absence of proof that the
state had ceded jurisdiction of a place to the United States, the
state courts had jurisdiction over an offense.

Lowell H. Becraft, Jr.
209 Lincoln Street
Huntsville, Alabama 35801

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