CHAPTER IV BASIC CHARACTERISTICS OF THE SEVERAL CATEGORIES OF LEGISLATIVE JURISDICTION Effects of varying statutes.--To each of the four categories of legislative jurisdictional situations (in which the United States has (a) exclusive, (b) concurrent, (c) or partial legislative jurisdiction, or (d) a proprietorial interest only) differing legal characteristics attach. These differences result in various advantages, various disadvantages, and many problems arising for the Federal Government, for State and local governments and for individuals, out of each of the several types of legislative jurisdiction. Specific advantages, disadvantages, and problems will be discussed in succeeding portions of this report. Knowledge of the basic incidents of the several categories of legislative jurisdiction is essential, however, to the identification and appraisal of these matters. Exclusive legislative jurisdiction.--When the Federal Government receives exclusive legislative jurisdiction over an area, the jurisdiction of the State and of any local governments (which of course derive their authority from the State) is ousted, subject only to the right to serve process and to t several concessions made by the Federal Government which have already been mentioned. Thereafter only Congress has authority to legislate for the area. However, while Congress has legislated for the District of columbia, it has not legislated for other areas under its exclusive legislative jurisdiction except in a few particulars which will be indicated hereinafter. The courts have filled the vacuum which might otherwise have occurred by adopting for such areas a rule of international law whereby as to ceded territory the laws of the displaced sovereign which are in effect at the time of cession and which are not in conflict with laws or policies of the new sovereign remain in effect as laws of such new sovereign until specifically displaced. Under the international law rule it is anticipated that the new sovereign will act to keep the laws of the ceded territory up to date, for any enactments or amendments by the old sovereign have not effect in territory which has been ceded. In view of the fact that Congress has not acted except as will be stated to amend or otherwise maintain the laws in areas other than the District of Columbia which are under its exclusive legislative jurisdiction, the laws generally in effect in each such area (15) 16 are the former State laws which were in effect there as of the time, be it 20 or 120 years ago, when jurisdiction over the area passed to the United States. It can be seen that since laws of every State have been developing and changing throughout the years, the laws applicable in Federal exclusive jurisdiction areas in the same State vary according to the time at which jurisdiction there over passed to the United States. It can also be seen that since the laws applicable in these areas have not developed or changed during the period of Federal exercise of jurisdiction in the areas, such laws are in most cases, obsolete, and in many cases archaic. This condition adversely affects nearly all who may be involved, with the effects most likely to be felt by persons residing or doing business on the area and those who deal with such persons. In certain instances, even within a single area under exclusive Federal jurisdiction, an engineering survey may be necessary to determine exactly where an act giving rise to a legal effect occurred, in order to ascertain which of several successive state laws, all archaic, is applicable. This necessity develops from the fact that ordinarily consent and cession statutes have not transferred jurisdiction to the United States until it has acquired title, a process that, at least with respect to larger reservations, has lasted several years and often has resulted in the applicability under the international law rule of different State laws to different tracts of land within the same reservation. This was particularly the case before the enactment of legislation. permitting the United States to acquire title upon the filing of a condemnation suit, rather than at the termination of such often protracted litigation. In other cases, amendments to State consent and cession statutes during the process of land acquisition have resulted in the United States' exercising different quanta of legislative jurisdiction in the same Federal reservation. These areas of different legislative jurisdiction are often so random and haphazard that only litigation, again dependent upon an engineering survey, can determine even what court has jurisdiction, without regard to questions of substantive law. In addition, although a body of substantive law is carried over for areas over which the Federal Government assumes exclusive legislative jurisdiction, the agencies and administrative procedures which often are necessary to the functioning of the substantive law are not made available by the Federal Government. For example, while a marriage law is carried over, there is no licensing and recordkeeping office; and while there are public health and safety laws, there rarely are available the necessary Federal facilities for administering and enforcing these laws. 17 In order to avoid the probably insurmountable task of enacting and maintaining a code of criminal laws appropriate for all the areas under its legislative jurisdiction, the Congress has passed the so called Assimilative Crimes Act (18 U.S.C. 13), set out in appendix B. In this statute the congress has provided in legal effect, that all acts or omissions occurring on an area under its legislative jurisdiction which would constitute a crime if the area continued under State jurisdiction are to constitute a crime if the area continued under State jurisdiction are to constitute a similar crime, similarly punishable, under Federal law. The assimilative Crimes Act does not apply to make Federal crimes based on State statutes which are contrary to Federal policy. Unlike the court-adopted rule of international law, the Assimilative Crimes Act provides that the State laws applicable shall be those in force "at the time of such act or omission." The criminal laws in areas over which the Congress has legislative jurisdiction as to crimes are thus as up to date as those of the surrounding State. Law enforcement must, of course, be supplied by the Federal Government since, the State law being inapplicable within the enclave, local policemen and other law-enforcement agencies do not have authority nor do the State courts have criminal jurisdiction over offenses committed within the reservation. However, Federal law enforcement facilities are distant from many Federal areas, and the machinery of the Federal court system is not designed to handle efficiently or with reasonable convenience to the public or to the Federal Government the administration of what are essentially local ordinances. Federal areas of exclusive jurisdiction are considered in many respects to comprise legal entities separate from the surrounding State, and, indeed, until a recent decision the United States Supreme Court dispelled the notion, were viewed as completely sovereign areas (under the sovereignty of the United States), geographically surrounded by another sovereign. As a result there is not obligation on the State or on any local political subdivision to provide for such areas normal governmental services such as disposal of sewage, removal of trash and garbage, snow clearance, road maintenance, fire protection and the like. Persons and property on exclusive jurisdiction areas are not subject to State or local taxation except as Congress has permitted (income, sales, use, motor vehicle fuel, and unemployment and workmen's compensation taxes only have been permitted). It should be noted that the Federal Government and its instrumentalities are not subject to direct taxation by States or local taxing authorities regardless of the legislative jurisdiction status of the area on which they may be operating. However, the immunity from State authority of exclusive jurisdiction areas has the additional effect of barring State 20 all times, under this jurisdictional status as under all others, the Federal government has the superior right under the supremacy clause of the Constitution to carry out Federal functions unimpeded by State interference. State law, including any amendments which may be made by the State from time to time, is applicable in a concurrent jurisdiction area. Thus there is absent the tendency which exists in exclusive jurisdiction areas for general laws to become obsolete. Federal law appertaining generally to areas under the legislative jurisdiction of the United States also applies. State or local agencies and administrative processes needed to carry out various State laws, such as laws relating to notaries, various licensing boards, etc., can be made available by the State or local government in accordance with normal procedures. State criminal laws are, course, applicable in the area for enforcement by the State. The same laws apply for enforcement by the Federal Government under the Assimilative Crimes Act, which by its terms is applicable to areas under the concurrent as well as the exclusive legislative jurisdiction of the United States, and other Federal criminal laws also apply. Most crimes fall under both Federal and State sanction, and either the Federal or State Government, or both, may take jurisdiction over a given offense. Unlike the situation in exclusive jurisdiction areas, the State and the local governmental subdivisions have the same obligation to furnish their normal governmental services, such as sewage disposal, to and in the area, as they have elsewhere in the state. They also have the compensating right of imposing taxes on persons, property, and activities in the area (but not, of course, directly on the Federal Government or its instrumentalities). The regulatory powers of the States may be exercised in the area but, again, not directly on the Federal Government or its instrumentalities, and not so as to interfere with Government activities. Most significant in many cases, residency in a concurrent jurisdiction area, as distinguish from residency in an exclusive jurisdiction area, in every sense and to the same extent qualifies a person as a resident of a State as residency in any other part of the State, so that none of the problems relating to personal rights and privileges that may arise in an exclusive jurisdiction area are raised in a concurrent jurisdiction area. Partial legislative jurisdiction.--This jurisdictional status occurs where the State grants to the Federal Government the authority to exercise certain State powers within an area but reserves for exercise only by itself, or by itself as well as the Federal Government, other powers constituting more than merely the right to serve civil or criminal process. 21 As to those State powers granted by the State to the Federal Government without reservation, administration of the Federal area is the same as if it were under exclusively Federal legislative jurisdiction, and the powers which were relinquished by the State may be exercised only by the Federal Government. As to the powers reserved by the State for exercise only by itself, administration of the area is as though the United States had no jurisdiction whatever (i. e., proprietorial interest only ); the reserved powers may not be exercised by the federal government, but continue to be exercised by the State. As to those powers granted by the State to the Federal Government with a reservation by the State of authority to exercise the same powers concurrently, administration of the area is as though it were under the concurrent legislation jurisdiction status described above; only the powers specified for concurrent exercise can, of course, be exercised by both the Federal and State Governments. The reservations made by States which result in a partial legislative jurisdiction status relate usually to such matters as taxation of individuals on the area and their property and activities, but can and do relate to numerous combinations of the matters affected by legislative jurisdiction. Depending on which powers have been granted to the United States for exercise exclusively by it, various State laws may or may not be applicable. In any event (assuming no complete reservation to itself by the State of the right to make or enforce criminal laws) the Assimilative Crimes Act applies, allowing law enforcement by Federal officials. Depending also on which powers have been granted by the State, the relations of the residents of the area with the State are disturbed to a greater or lesser degree in the usual case. The exact incidents of this type of jurisdiction need to be determined in each case by a careful study of the applicable State cession or consent statute. Proprietorial interest only.--Where the Federal Government has no legislative jurisdiction over its land, it holds such land in a proprietorial interest only and has the same rights in the land as does any other landowner. In addition, however, there exists a right of the Federal Government to perform the functions delegated to it by the Constitution without interference from any source. It may resist, by exercise of its legislative or executive authority or through proceedings in the court, according to the circumstances, any attempted interference by a State instrumentality as well as by individuals. Also, the Congress has special authority, vested in it by article IV, section 3, clause 2, of the Constitution, to enact laws for the protection of property belonging to the United States. 22 Subject to these conditions, in the case where the United States acquires only a proprietorial interest the State retains all the jurisdiction over the area which it would have if a private individual rather than the United States owned the land. However, for the reasons indicated the State may not impose its regulatory power directly upon the Federal Government nor may it tax the Federal land. Neither may the state regulate the actions of the residents of the land in any way which might directly interfere with the performance of a Federal function. State action may in some instances impose an indirect burden upon the Federal Government when it concerns areas held in a proprietorial interest only, as in the Penn Dairies case, supra. Any persons residing on the land remain residents of the State with all the rights, privileges, and obligations which attach to such residence.