Exclusive Federal Legislative Jurisdiction: Get Rid of It!

• Author: Major Stephen E. Castlen and Lieutenant Colonel Gregory O. Block
• Pages: 03

1. Introduction

   Determining what law applies on military installations (state,

   federal, or some combination therean continues to challenge judge

   * The authors thank Ms.

   Martha Black, The Judge Advocate Generah School, United States Army. Chsrlorteauillc, Virpinin, and Major Lisa M Schenck, Unitsd States Military Academy Weat Point. New York, far their editanal, organizational,md.prwhadmg aamtsnce during thm prqact

   Judp Advoeate Gonerds Corps, United States Army Pieeenfiy assigned aa Deputy Staff Judge Advocate, Fort Lee. Virginia. B.A., 1981, Indiana State Unwcrsily, 1981, J D.. Salmon P. Cham College of Law. Northern KsntvrkyUniversity. 1984, LL.M 1994, The Judge Advocate Denerah Sshwi, United States Army, Chsrlatteavilic, Virgnm Military education insludea. Unitad Sfsfea

   Army

   Command and General Staff College (eomespndence) 1991, Combined Arms Senlees Staff School, 1988; United States Army Judge Advocate Gcnerah Sohooi Basis Course, 1985 Formerly assigned BLI Professar of Law, The Judge Advoeste Generala Schml, United Stales Army. Chariatleaville. Vlrpinia, 1994.97; Amstant United States A~torney, United Sfatea Department of Justice, Crimind Law Diumion, Defense Roevrsment Fraud Umt, Washington. D.C. 1991-92: Pima Oilileer, Oilice of the Judge Advocate General, Pentagon, Waehmgton. D C I 1990.91, Recruiting OFker, OfFlee of The Judge Advocate Gensrsl, Fan Bsivoir, Vwpinis, 1989.90. Ofiepr tn Charge, Coleman Legal Services Center, 21sl Theater Army Ares Command, Sandhaffen, Germany, 1987.89; Senior Trial Counsel, 2let Support Commend. Mannheim, Germany, 1986.81: Trial Defense Counael, United State) h y

   Legal

   %y;m b n n , Heidelberg, &maw, 1985-87 Rssentiy assigned as

   Deputy Staff Judge Advoeate, Eighth U.S.

   ArmylOlC, Yonpan Law Center, Seoul,

   Korea. B A , Washingon State University, 1979, M.S, Univeraity of Southern California. 1982, J D , Seton Hall University Schwl of Law, 1985, AMEDD OE~cer Bamc, 1979, M d i t q Persamei Oficer Courle, 1979, 108Ul Judge Advoeatc Officer Basic Course, 1985, Combined Arms and Services Staff Sehwl, 1988, LL MI

   Judge Advocate Generaps Corps, Unitsd Stalee Army

   37th

   Jvdge Adv-te Oiliser Graduate Courae, 1987.88. United StateeArmy Command and General Staff Ofieer Course, 1996. Formdy assigned a8 Rofessar and Chisf, Legal Asamtams Branch, Adminialrstivc and Civil Law Department, Thhe Judge Adu-ta &mmh Sdlml, Ch*riottemiie, Vuglms: Tnd Attorney Ofice of the Judge Aduoeata, United States Army Europe and Swenth Army, Heidelberg, Germany, 1991.95: OlC, VI1 Carpa-North Stultgart Branch, 1989-91: Legal krsiatance Attorney lhd Counaal, %mor Trial Caunlel, Ofice of the Staff Judge Ad"-ts, Fort Benmng. Georga, 19ffi. 88, HQ Company Commander and Adjutant, Heidelkrg Medical Department Adiviw, &many, 1979-82

   advocates and installation commanders. Cwihan crime, including juvenile crime, child abuse, spouse abuse, enviranmental crimes and compliance, local police support, personal injury, wrongful death, service of process, and other issues are all significantly affected by the jurisdictional status of the military installation, Far example, when juveniles commit crimes on the installation, commanders and judge advocates need answers to the following questions which involve jurisdictional and practical issues. Does the State OT federal Government have jurisdiction to prowute a juvenile? What criminal or civil law applies? What procedures must be followed before federal courts may prosecute? Which sovereign is best suited to handle juvenile matters? When domestic violence occurs on a military installation, similar questions arise. Often, federal authorities need state police assistance. On military installations local police can be reluctant to assist because there 1s confusion over their authority, obligations, and liability. Why is jurisdiction different on some military installationsand why do some installations have different types of jurisdiction located throughout the installation? What caused all these problems? It all started in 1783, when American soldiers mutinied against the Continental Congress. The soldiers were anggv because they were not paid for their sewice during the Revolutionary War. In response, the Continental Congress sought to protect federal activities by limiting or completely exclud. ing atate authority on federal lands or "enclaves While well intended in their time, the efforts of our founding fathers have caused many problems today. Is there B solution?

   This article reviews the historical basis far establishing federal legislative jurisdiction over land and examines the extensive prab-leme which can occur when federal legislative jurisdiction applies to the exclusion of all state 1aw.l As a result of these problems, current Army policy favors acquisition of only proprietary interests in land.2 Excluding state legislative authority now is not authorized without exceptional eircumstanees.3 However, many installations still exist where state legislative authority is excluded.

   Problems are inevitable on installations with exelusive federal lepslative jurisdiction. This is panicularly true an Army installations where civilian dependents reside. In addition to problems involving civilian dependents, other weaknesses and problems exist when state legislative authority is excluded from areas where the

   Aug. 1973) IhereinaRerM 405.201.

   Id pars 6

   im71 &~~L~~FED~LE~I~LATNE~SDI~TI~N

   military operates. The same Army policy that restricts exclusion of state legislative authority when lend is acquired enmurages retrocession of unnecessary federal legislative jurisdiction to the states. Judge advocates and commanders implementing this policy can resolve many problems by retroceding unnecessary legislative juris. diction, especially on installations containing significant numbers of civilians. Foreseeable benefits include simplifying choice of law determinations, ensuring that the latest, and arguably the most rational, law applies to civil eases, and providing for more efficient and effective criminal prosecutions, greater protection far children and spouses in domestic relations areas, and better police protection.

   In examining the benefits of retrocession in detail, this article surveys the process of retrocession. The examination reveals that we need to do more to implement existing Army policy regarding retroeession of unnecessary jurisdiction.

   11. Legislative Jurisdiction

   A. Background

   Legislative jurisdiction is the government's power and autharity to enact, execute, and enforce legislation.' Generally, the federal government has legislative authority that flows from either specific constitutional pants of authority or its interest in specific parcels of land. As examples of the former, the United States Constitution grants Congress specific legislative authority or the power to regu-late in certain areas, such as interstate commerce, declaration of war, and government of the land and naval forces.5 The Constitution's Supremacy Clauses and Property Clause7 ensure that federal interests in these areas are paramount, regardless of the federal government's interest in the lands invo1ved.S

   The focus of this article is federal legislative jurisdiction based on the federal government's interest in specific parcels of land The jurisdiction derives from actions by the state and federal govern- 4 Id para3. 6

   us CONST .rt I $8. Id art. VI, oi 2 h e

   Supremacy Cisuse prohibita a atateh reservation ofluris. diction from being inconsistent wlth the free and effective urn of the land for fedsral pu'p"ses Srr Fsn Leavenworth R.R. v. Lowe, 114 US 525,539 118851

   U.S. CONST. art. N,

   B 3, ci 2.li In sn interesting mea regarding pro me plsadings prepared by the Fori R h y legal Assiatance Office, Fort Riiey, Kansas, the Kanaaa Afsrney General deferred to the Supremacy Clrusa in mcognning that attorneys aeflng under anthorny of the United States Amy Legal Assistance Ragram (cltmg 10 U S.C 5 1044) worlnng onan aIEiuIivB iegislative jundction enclave do not have b be ihcensed in the State of Kanaas. L e Kames Attorney Gen. Op No 95-85, 1995 Wl.813454 IAu% 15, 1995)

   ment during the acquisition process, or in some cases, subsequent to the federal government's acquisition of the land. It is not always an absolute power, but instead depends on the terms of its grant. Specifically, there are three types of legisiative junsdiction-eaclusive, concurrent and partial. The type of federal legislative jurisdiction that exists over a specific parcel depends on the extent of legislative authority the federal government possesses relative to that property.

   B. Qpes ofkgislative Jurisdiction

   The type of legislative jurisdiction the federal government pos-sesses directly affects federal-state relations in that it determines what law will apply. Specifically, it will tell us whether the state gov-ernment, the federal government, or both have legislative authority over that land. In situations where the federal government possesses land without any legislative jurisdiction over the land, the federal government obtains only a pmprietary interest from the state. The federal government does not acquire any of the state's legislative authonty? rather it merely occupies the property and only State civil and criminal laws apply ,n that area In all other situations, the federal government has either exclusive, concurrent, or partial legislative authority over property it owns in a state.

   I . Exclus~ue Legislative JILrisdiction-Exclusive legislative jurisdiction applies to those areas where the federal government possesses all legislative authority, with no authority reserved to the state, except the right to serve process resulting from activities or incidents which occurred off the land.

   Federal lands within states that are under exclusive federal leg-islative jurisdiction, regardless of how the jurisdiction was obtained, are called "enclaves." States lose many rights and obligations on enclaves. For...