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Federal enclave
From Wikipedia, the free encyclopedia
In United States law, a "federal enclave" is a parcel of federal property within a state that is under the "Special Maritime and Territorial Jurisdiction of
the United States."[1] As of 1960, the latest comprehensive inquiry,[2] seven percent of federal property had enclave status, of which four percent (almost
all in Alaska and Hawaii) was under "concurrent" state jurisdiction. The remaining three percent, on which some state laws do not apply, is scattered
almost at random throughout the United States. In 1960, there were about 5,000 enclaves, with about one million people living on them.[3] These
numbers would undoubtedly be lower today because many of these areas were military bases that have been closed and transferred out of federal
ownership.
Since late 1950s, it has been an official federal policy that the states should have full concurrent jurisdiction on all federal enclaves,[4] an approach
endorsed by legal experts.[5]
Contents
1 Relation to other subdivisions
2 History
2.1 Early developments
2.2 1885: Cession and reservation as alternatives
2.3 International law rule
2.4 After 1900: Congress begins to authorize state laws
2.5 1937: Supreme Court allows states to reserve jurisdiction
2.6 February 1, 1940: Congress discourages new enclaves
2.7 Post-WWII: Courts apply state laws without retrocession
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Federal enclaves are to be distinguished from federal territories and possessions administered under Article IV, Section 3, Clause 2, which once included
all the territory that has since become states, and still includes insular territories like Puerto Rico, the United States Virgin Islands, Guam, American
Samoa, and a few others. Historically, the Congress has not exercised a full array of state-like powers over such territories, but tried to organize them
into self-governing entities, as was done with the Northwest Ordinance and the Southwest Ordinance.
History
Early developments
The first federal enclaves were created by the same clause of the Constitution that created the District of Columbia. That clause provides for the United
States to exercise "exclusive Legislation" over the new Seat of Government and "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.
[8]
As a result of the Enclave Clause, whenever the state government consented to the purchase of property by the federal government for a needful
building, the United States obtained exclusive legislative jurisdiction over that parcel of property. In 1841, the Congress enacted a general law requiring
state consent for all federal building projects.[9] Moreover, the Attorneys General of the United States ruled that, in consenting to purchase, the States
could reserve no jurisdiction except for the service of criminal and civil process." [10]
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Congress provided no civil laws to govern these enclaves. So in 1885, the Supreme Court held that the "international law rule," applied. That rule
provides that when a territory is transferred from one government to another (such as when a federal enclave is ceded), laws for the protection of private
rights continue in force until abrogated or changed by the new government.[13][14]
Under the doctrine of extraterritoriality, a federal enclave was treated as a "state within a state" until 1953, and therefore enclave residents were not
residents of the state.[15] They could not vote in state elections,[16] attend public schools,[17] obtain a divorce in state courts,[18] or call upon state law
enforcement officers to protect them from criminals.[19]
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A change of municipal boundaries did not interfere in the least with the jurisdiction of the United States within the area or with its use or
disposition of the property. The fiction of a state within a state can have no validity to prevent the state from exercising its power over
the federal area within its boundaries, so long as there is no interference with the jurisdiction asserted by the Federal Government. The
sovereign rights in this dual relationship are not antagonistic. Accommodation and cooperation are their aim. It is friction, not fiction, to
which we must give heed.
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In 1956, three years after Howard v. Commissioners, the Supreme Court in Offutt Housing Co. v. Sarpy County upheld Congress' power to authorize the
application of state laws to federal enclaves without a "relinquishment" of jurisdiction. In affirming the state's right to tax a private builder of military
housing, the Supreme Court emphasized that the Congress' authorization for state taxation on enclave property was not a retrocession: "We do not hold
that Congress has relinquished this power over these areas. We hold only that Congress, in the exercise of this power, has permitted such state taxation
as is involved in the present case."[38]
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In addition, the "friction not fiction" doctrine indicates that the courts can approve the application state laws to federal enclaves to the same extent that
they apply to the other 97 percent of federal lands (i.e., subject only to the limitations of the Supremacy Clause).[47] With regard to the states' ability
unilaterally to apply their laws on federal enclaves, Evans noted that enclave residents:[48]
are required to register their automobiles in Maryland and obtain driver's permits and license plates from the State; they are subject to the
process and jurisdiction of State courts; they themselves can resort to those courts in divorce and child adoption proceedings; and they
send their children to Maryland public schools.
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[T]here was no interference with federal jurisdiction by the taxing entities; hence, no friction. Therefore, we will not apply the fiction
that the Depot was a foreign country or a sister state to deem that the aviation parts were shipped by Aviall outside the state when they
were shipped to a location in Bowie County near Texarkana, within the geographic limits of Texas.
Similarly, the California Court of Appeal has acknowledged Mississippi Tax I's statements about the enclave clause with regard to state liquor
regulations, but nevertheless relied on Howard and Evans to hold that the enclave clause did not prevent the application of state laws protecting
dependent children.[69]
Notes
1. 18 U.S.C. 7(3). See United States Department of Justice Criminal Resource Manual 1630
(http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01630.htm)
2. Federal legislative jurisdiction: report. Washington, D.C.: Public Land Law Review Commission, Land and Natural Resources Division, U.S. Dept. of Justice.
1969. Retrieved 3 November 2011.
3. Id., at 146.
4. U.S. REPORT OF THE INTERDEPARTMENTAL COMMITTEE FOR THE STUDY OF JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES,
PART 1, THE FACTS AND COMMITTEE RECOMMENDATIONS (1956) (hereafter "1956 REPORT") at 70.
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5. Roger W. Haines, Jr., FEDERAL ENCLAVE LAW (Atlasbooks.com 2011) at 9, 213; Stephen E. Castlen and Gregory O. Block, Exclusive Federal Legislative
Jurisdiction: Get Rid of It!, 154 MIL. L. REV. 113 (1997); David E. Engdahl, State and Federal Power over Federal Property, 18 ARIZ. L. REV. 283, 336, n.228
(1976) ("No extensive patchwork of nationalized acreages created here and there out of the territory of the states, even with state consent, could have been
intended.").
6. Howard v. Commissioners, 344 U.S. 624, 626, 73 S.Ct. 465, 97 L.Ed. 617 (1953).
7. Evans v. Cornman, 398 U.S. 419, 422, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970).
8. UNITED STATES CONSTITUTION, Article I, Section 8, Clause 17 (Enclave Clause).
9. Section 355 of the Revised Statutes of the United States.
10. U.S. REPORT OF THE INTERDEPARTMENTAL COMMITTEE FOR THE STUDY OF JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES:
PART II, A TEXT OF THE LAW OF LEGISLATIVE JURISDICTION (1957) (hereafter "1957 REPORT") at 5.
11. Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 531, 5 S.Ct. 995, 29 L.Ed. 264 (1885).
12. The current Assimilative Crimes Act is at 18 U.S.C. 13.
13. Chicago, Rock Island & Pacific Ry. v. McGlinn, 114 U.S. 542, 546, 5 S.Ct. 1005, 29 L.Ed. 270 (1885).
14. Armstrong, Marcia H. "Jus Gentium: The Law Regarding "Conquered Territory" ". Understanding American property rights - "Online" Studies. Family Guardian.
Retrieved 3 November 2011.
15. 1957 REPORT, supra note 6 at 238-39.
16. Arledge v. Mabry, 52 N.M. 303, 197 P.2d 884 (1948).
17. Schwartz v. O'Hara Township School Dist., 375 Pa. 440, 100 A.2d 621 (1953).
18. Chaney v. Chaney, 53 N.M. 66, 201 P.2d 782 (1949).
19. Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455 (1939).
20. 16 U.S.C. 457, enacted in 1928.
21. 4 U.S.C. 104, enacted in 1936 and known as the "Lea Act."
22. 4 U.S.C. 105-108, enacted in 1940 and known as the "Buck Act."
23. 40 U.S.C. 290, enacted in 1936.
24. 26 U.S.C. 3305(d), enacted in 1939.
25. James v. Dravo Contracting Co., 302 U.S. 134, 148, 58 S.Ct. 208, 82 L.Ed. 155 (1937).
26. 1957 REPORT, supra note 6 at 11.
27. The February 1, 1940 law was codified in three titles of the United States Code as 33 U.S.C. 733, 40 U.S.C. 255 and 50 U.S.C. 175. In 2002, the
jurisdictional part of the statute was amended and recodified as 40 U.S.C. 3112.
28. See, e.g., General Dynamics Land Systems, Inc. v. Tracy, 83 Ohio St.3d 500, 700 N.E.2d 1242, 1244-45 (Ohio S.Ct. 1998) (ruling that even though the 1943 and
1945 letters from the Secretary of War did not identify specific properties, they were sufficient to accept jurisdiction.
29. 1957 REPORT, supra note 6 at 7-8.
30. Arapajolu v. McMenamin, 113 Cal. App. 2d 284, 249 P.2d 318 (1952).
31. Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970).
32. 20 U.S.C. 236 et seq.
33. 1956 REPORT, supra note 2 at 55.
34. Craig v. Craig, 143 Kan. 624, 56 P. 464 (1936); Darbie v. Darbie, 195 Ga. 769, 25 S.E.2d 685 (1943); Crownover v. Crownover, 58 N.M. 597, 274 P.2d 127
(1954).
35. Haines, supra Note 3 at 42.
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36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
Howard v. Commissioners, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617 (1953).
Id., 344 U.S. at 626.
Offutt Housing Co. v. Sarpy County, 351 U.S. 253, 260-261, 76 S.Ct. 814, 100 L.Ed. 1151 (1956).
1956 REPORT, supra note 3 at 70; 1957 REPORT, supra note 6 at viii.
1969 REPORT, supra note 2 at 52.
Evans, 398 U.S. at 424, quoting Offutt Housing Co. v. Sarpy County, 351 U.S. 253, 260-261, 76 S.Ct. 814, 100 L.Ed. 1151 (1956).
Evans, 398 U.S. at 425.
8 U.S.C. 1358.
29 U.S.C. 1705(d) (originally codified at 29 U.S.C. 937(d)).
See Philadelphia v. Konopacki, 2 Pa. D. & C.3d 535, 538, 1975 WL 97 (Pa. Com. Pl.) (1975) (holding that Philadelphia could enforce a $300 fine for nonpayment of City tax from a resident of a federal enclave, regardless of whether the fine was characterized as "criminal or quasi-criminal").
See Haines, supra Note 3 at 9, 102-103, 213.
Id. at 9, 107, 213.
Evans, 398 U.S. at 424.
1957 REPORT, supra note 16 at 235, n.57.
Board v. Donoho, 344 Colo. 321, 356 P.2d 267 (1960).
Board v. McCorkle, 98 N.J. Super. 451, 237 A.2d 640 (1968).
Matter of Charles B, 196 Misc.2d 374, 765 N.Y.S.2d 191 (2003).
State v. Debbie F., 120 N.M. 665, 905 P.2d 205 (1995).
Cobb v. Cobb, 406 Mass. 21, 545 N.E. 2d 1161 (1989).
United States v. State Tax Comm. of Mississippi, 412 U.S. 363, 378, 93 S.Ct. 2183, 2192, 37 L.Ed.2d 1 (1973).
Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 84 S.Ct. 857, 11 L.Ed.2d 782 (1964).
Black Hills Power and Light Co. v. Weinberger, 808 F.2d 665 (8th Cir. 1987).
Hooda v. Brookhaven Nat. Laboratory, 659 F.Supp.2d 382 (E.D. N.Y. 2009).
Osburn v. Morrison Knudsen Corp., 962 F. Supp. 1206 (E.D. Mo. 1997) (age discrimination); Miller v. Wackenhut Services., 808 F.Supp. 697, 700 (W.D.Mo.
1992) (anti-discrimination laws).
Taylor v. Lockheed Martin Corp., 78 Cal.App.4th 472, 482, 92 Cal.Rptr.2d 873 (2000).
Stiefel v. Bechtel Corp., 497 F.Supp.2d 1138 (S.D. Cal. 2007) (Stiefel I).
Department of Labor and Industry v. Dirt & Aggregate, Inc., 120 Wash.2d 49, 837 P.2d 1018 (Wash. S.Ct. 1992). See also Stiefel v. Bechtel Corp., 497 F.Supp.2d
1153, 1158 (S.D. Cal. 2007) (Stiefel II). But see Taylor v. Lockheed Martin Corp., 78 Cal.App.4th 472, 485-486, 92 Cal.Rptr.2d 873 (2000) (ruling that U.S.
Secretary of Labor's approval of the Cal/OSHA plan is the equivalent of congressional action, permitting a plaintiff to assert a claim for relief under Cal/OSHA
against a federal enclave contractor).
Manning v. Gold Belt Falcon, LLC, 681 F.Supp.2d 574 (D. N.J. 2010).
Lord v. Local Union No. 2088, Intern. Broth. of Elec. Workers, AFL-CIO, 646 F.2d 1057 (5th Cir. 1981). But see Professional Helicopter Pilots Ass'n. v. Lear
Siegler Services, Inc., 326 F.Supp.2d 1305, 1312 n.6 (M.D. AL. 2004) citing Howard v. Commissioners, 344 U.S. 624, 626, 73 S.Ct. 465, 97 L.Ed. 617 (1953).
See discussion in Haines, supra note 3 at 104-106.
North Dakota v. United States, 495 U.S. 423, 110 S.Ct. 1986, 109 L.Ed.2d 420 (1990).
Aviall Services, Inc. v. Tarrant Appraisal Dist., 300 S.W.3d 441, 449 (Tex.App. 2009).
Aviall Services, 300 S.W.3d at 449.
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69. In re Terry Y., 101 Cal.App.3d 178, 161 Cal.Rptr. 452, 453 (1980).
70. See, e.g., 1957 REPORT, supra Note 6, at 114.
71. United States v. Raffield, 82 F.3d 611 (4th Cir. 1996)(North Carolina); United States v. Gabrion, 517 F.3d 839 (6th Cir. 2008) (Michigan); United States v. Fields,
516 F.3d 923 (10th Cir. 2008) (Oklahoma).
72. See discussion, with particular reference to California and Missouri statutes in Haines, supra Note 3, at 134-154.
References
A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States
(http://www.archive.org/details/adissertationon00serggoog), Peter Stephen Du Ponceau (1824).
Conflict of Criminal Laws, Edward S. Stimson (1936) Foundation Press
Jurisdiction over Federal Areas within the States (http://www.supremelaw.org/rsrc/fedjur/) (1954)
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