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 labelled 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
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
"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 stated:
"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
"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 Buildings."
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
"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
"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
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 follows:
"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
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
"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
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 jurisdiction.
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
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 States.
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.,
"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 provinces.
FEDERAL CRIMINAL JURISDICTION
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
"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.
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
"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.
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
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
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