Earlier this year, the Utah’s Legislative Commission on Federalism released a report entitled “Jurisdiction Over Federal Areas Within the States. The report purports to update a 1956 report by the same name. The Federalism Commission’s report sets forth an expansive interpretation of state jurisdiction over federal lands that should be read with caution. As explained below, the report’s legal analysis suffers from three foundational flaws. The first is a lack of context. The second is an omission of relevant facts, events, and areas of law. The third is exaggeration.
Context is crucial for understanding any area of law. For example, one could not rely upon a report that sets forth the law for oil and gas wells and apply the same legal principles to water wells on the presumption that both types of wells are built to access liquids. The Federalism Commission’s report suffers from this type of contextual error. The 1956 report relied upon by the Federalism Commission focused on federal enclaves. “Federal enclaves” are parcels of land within state boundaries that are acquired with state consent and owned by the federal government. Federal enclaves include the District of Columbia, post offices, army bases, veterans’ affairs hospitals, “and other needful buildings.” U.S. Const, Art. I, sec. 8, cl. 17. The 1956 report addressed the narrow question of the extent to which states have jurisdiction over activities occurring on or within federal enclaves. The context of the 1956 report is apparent in its introductory paragraph, which reads:
The instant study was occasioned by the denial to a group of children of Federal employees residing on the grounds of a Veterans Administration hospital of the opportunity of attending public schools in the town in which the hospital was located…. The decisions were based on the ground that residents of the area on which the hospital was located were not residents of the State since ‘exclusive legislative jurisdiction’ over such area had been ceded by the State to the Federal Government, and therefore, they were not entitled to privileges of state residency.
This and similar discriminatory events brought to light a patchwork of inconsistent laws and practices throughout the states and between agencies about whether state laws addressing issues like “voting, divorce, old age assistance, admission to State institutions, and loss of rights to attendance at public schools” applied to individuals who resided on federal enclaves. 1956 Report at 27.
Critically, the 1956 report did not contend that all federal lands are federal enclaves. Indeed, federal enclaves represent less than five percent of federal land holdings. George C. Coggins & Robert L. Glicksman, 1 Pub. Nat. Resources L. § 3:6 (2nd ed.). Today’s Federalism Commission glosses over this context, and omits relevant history and law that helps explain federal authority to own and manage public lands within Utah. The Federalism Report repeatedly asserts that the federal government:
obtains [] jurisdiction in only one of three ways: by: (1) the purchase of land from the State for federal purposes with the consent of the legislature of the state; (2) by cession of land and jurisdiction to the Federal Government by the legislature of the State, or (3) by reservation of land by the Federal Government on the admission of a State under the enabling act through which the State is admitted to the Union.
Federalism Report at 18.
The third option is important when considering lands West of the Mississippi River.
The U.S. can acquire land by entering into treaties with foreign nations. When the U.S. signs a treaty to acquire land, title to the acquired land is held by the federal government unless and until the federal government divests itself of the land. The text of option three reinforces this basic point: the federal government must have already owned the land, otherwise the U.S. couldn’t “reserve” those lands. The federal government assuredly does own Western lands because the U.S. obtained those lands from foreign nations like France (Louisiana Purchase Treaty), Great Britain (e.g., Oregon Treaty), Spain (Treaty of Adams-Onis relating to Florida), Mexico (e.g., Treaty of Guadalupe Hidalgo), and Russia (Alaska Purchase Treaty).
And of course we have the Property Clause of the U.S. Constitution: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States….” U.S. Const, Art. IV, sec. 3, cl. 2. The phrase “belonging to” clearly indicates that the federal government can own property, including but not limited to property acquired through treaties with foreign nations. The word “dispose” also has a specific meaning that includes not just conveyance of title to land, but also to distribute or arrange, as in “[t]he ships were disposed of in the form of a crescent. The general disposed his troops in three lines….” Noah Webster, 1 American Dictionary of the English Language 64 (1828).
The U.S. Constitution, in short, empowers the federal government to acquire and own land. And with federal title comes federal jurisdiction. The federal government retains jurisdiction unless it transfers that jurisdiction to a state. As the Supreme Court made clear more than 150 years ago, congress has an “absolute right” to decide upon the disposition of federal land and “[n]o State legislation can interfere with this right or embarrass its exercise.” Gibson v. Chouteau, 80 U.S. 92, 99 (1871).
The Supreme Court reiterated that holding in 1917, concluding “As an owner and sovereign, “the United States can prohibit absolutely or fix terms on which its property can be used. As it can withhold or reserve the land it can do so indefinitely.” Utah Power & Light Co. v. United States, 243 U.S. 389, 403–05 (1917) (holding that the Enclave Clause does not require cession of state jurisdiction over federal lands and that the United States retains authority under the Property Clause).
Sticking close to home for an example, the U.S. acquired what is now Utah (and parts of several other states) from Mexico in 1848 via the Treaty of Guadalupe Hidalgo. Because the U.S. Constitution empowers the federal government to enter into treaties with foreign nations no one can reasonably contend that the acquisition was unconstitutional. See U.S. Const, Art. II, sec. 2. Indeed, only the federal government can make treaties because “No State shall enter into any Treaty, Alliance, or Confederation.” U.S. Const, Art. II, sec. 10. It’s hard to credibly argue that Western land acquisitions were lawless. To do so would call into question ownership of almost two-thirds of the United States—over 1.5 billion acres of land.
Focusing exclusively on acquisitions from states also ignores an essential fact: There was no state of Utah in 1848. Utah could not have entered into a treaty with Mexico, owned the land in question, or either sold or ceded land to the United States because Utah simply did not exist. Utah did not become a state until 1896—48 years after the federal government acquired the land that is now Utah from Mexico. The federal government did, however, create the Utah Territory in 1850—but federal territories are not sovereign entities or self-governing. The Utah Territorial Act makes that abundantly clear, “the governor, secretary, chief justice and associate justices, attorney and marshal, shall be nominated, and, by and with the advice and consent of the Senate, appointed by the President of the United States,” 9 Stat. 453, 456 (1850), and “the Constitution and laws of the United States are hereby extended over and declared to be in said Territory of Utah.” Id. at 458.
Joseph Story, who served on the U.S. Supreme Court and penned the Commentaries on the Constitution of the United States that formed a cornerstone of American jurisprudence, explained it this way:
As the general government possesses the right to acquire territory, either by conquest or by treaty, it would seem to follow, as an inevitable consequence, that it possesses the power to govern what it has so acquired. The territory does not, when so acquired, become entitled to self government, and it is not subject to the jurisdiction of the State. It must, consequently, be under the dominion and jurisdiction of the Union, or it would be without any government at all.
2 Joseph Story, Commentaries on the Constitution of the United States § 1324 (1880).
That was the law when Utah joined the Union.
There could have been little question about Utah’s status because 10 years into Utah’s status as a federal territory (and therefore decades before Utah became a state), President Buchanan said:
You have settled upon territory which lies geographically in the heart of the Union. The land you live upon was purchased by the United States and paid for out of their treasury. The proprietary right and title to it is in them, and not in you. Utah is bounded on every side by States and Territories whose people are true to the Union. It is absurd to believe that they will or can permit you to erect in their midst a government of your own, not only independent of the authority which they all acknowledge, but hostile to them and their interests.
James Buchanan, Pres. Proc. No. 50, 11 Stat. 796 (1858).
That history helps explain why the Utah State Constitution expressly disclaims all right and title to federal public lands within the boundaries of the newly admitted state. Utah State Constitution Art. III. The Federal Commission Report omits these indisputable facts.
That brings us to exaggeration. Yes, Utah does exercise some jurisdiction over federal public lands within its borders, but it is not the kind of plenary jurisdiction that the Federalism Commission envisions. The Supreme Court’s unanimous opinion in Kleppe v. New Mexico, which the Federalism Report quotes at length, is clear:
Congress [] surely retains the power to enact legislation respecting those lands [that were acquired via treaty with Mexico] pursuant the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause [of the U.S. Constitution]. As we said in Camfield v. United States, in response to a somewhat different claim: ‘A different rule would place the public domain of the United States completely at the mercy of state legislation.’
426 U.S. 529, 543 (1976) (citations omitted).
The Federalism Commission report claims that federal jurisdiction over public lands that were reserved by the federal government upon the admission of a State to the Union “appears nowhere in the Constitution, and is heavily contested, as a matter of law.” Federalism Commission Report at 18.
In reality, federal authority over public lands in Utah sits on firm, well-established, and long-recognized principles of constitutional law. See generally, John Ruple, “The Transfer of Public Lands Movement: The Battle to Take ‘Back’ Lands that Were Never Theirs,” 28 Colo. Nat. Res., Energy & Envtl. L. Rev. 101 (2018). The report’s only evidence that this principle is “heavily contested” are references to legal claims drafted and filed by the state of Utah, none of which have been successful in any court of law.
Long story short, Utah’s Legislative Commission on Federalism produced a lengthy document, but the legal analysis in the document takes legal principles out of context, omits important historical and legal principles, and exaggerates the degree to which federal authority over public lands in the west is contested. It should be read with skepticism.
John Ruple is a research professor of law, Stegner Center Fellow at the Wallace Stegner Center for Land, Resources and the Environment, and director of the Stegner Center’s Law and Policy program.
Jamie Pleune is a research associate professor of law and a member of the Law and Policy Group in the Wallace Stegner Center for Land, Resources and the Environment.