Of the several categories listed in 18 U.S.C. § 7, Section 7(3)
the most significant, and provides:|
The term "special maritime and territorial jurisdiction of the United
States," as used in this title, includes: . . .
(3) Any lands reserved or acquired for the use of the United States,
under the exclusive or concurrent jurisdiction thereof, or any place
purchased or otherwise acquired by the United States by consent of the
legislature of the State in which the same shall be, for the erection of a
magazine, arsenal, dockyard, or other needful building.
As is readily apparent, this subsection, and particularly its
clause, bears a striking resemblance to the 17th Clause of Article I, Sec. 8
the Constitution. This clause provides:
The Congress shall have power. . . To exercise exclusive
Legislation in all Cases whatsoever, over such District (not exceeding
Miles square) as may, be Cession of particular States, and the acceptance of
Congress, become the Seat of the Government of the United States, and to
like Authority over all Places purchased by the Consent of the
the State in which the Same shall be, for the Erection of Forts, Magazines,
Arsenals, dock-Yards, and other needful Buildings.
(Emphasis added.) The constitutional phrase "exclusive legislation" is the
equivalent of the statutory expression "exclusive jurisdiction." See
James v. Dravo Contracting Co., 302 U.S. 134, 141 (1937),
Surplus Trading Co. v. Cook, 281 U.S. 647, 652 (1930).
Until the decision in Dravo, it had been generally accepted
when the United States acquired property with the consent of the state for
of the enumerated purposes, it acquired exclusive jurisdiction by operation
law, and any reservation of authority by the state, other than the right to
civil and criminal process, was inoperable. See Surplus Trading
v. Cook, 281 U.S. at 652-56. When Dravo held that a state might
reserve legislative authority, e.g., the right to levy certain taxes, so
that did not interfere with the United States' governmental functions, it
necessary for Congress to amend 18 U.S.C. § 7(3), by adding the words
as," to restore criminal jurisdiction over those places previously believed
be under exclusive Federal legislative jurisdiction. See H.R. Rep.
1623, 76th Cong., 3d Sess. 1 (1940); S. Rep. No. 1788, 76th Cong., 3d Sess.
Dravo also settled that the phrase "other needful building"
not to be strictly construed to include only military and naval structures,
was to be construed as "embracing whatever structures are found to be
in the performance of the function of the Federal Government." See
James v. Dravo Contracting Co., 302 U.S. at 142-43. It therefore
embraces courthouses, customs houses, post offices and locks and dams for
The "structures" limitation does not, however, prevent the United
States from holding or acquiring and having jurisdiction over land acquired
other valid purposes, such as parks and irrigation projects since Clause 17
not the exclusive method of obtaining jurisdiction. The United States may
obtain jurisdiction by reserving it when sovereign title is transferred to
state upon its entry into the Union or by cession of jurisdiction after the
United States has otherwise acquired the property. See Collins v.
Yosemite Park Co., 304 U.S. 518, 529-30 (1938); James v. Dravo
Co., 302 U.S. at 142; Surplus Trading Co. v. Cook, 281 U.S. at
Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 526-27, 538, 539
The United States may hold or acquire property within the borders
a state without acquiring jurisdiction. It may acquire title to land
for the performance of its functions by purchase or eminent domain without
state's consent. See Kohl v. United States, 91 U.S. 367, 371,
(1976). But it does not thereby acquire legislative jurisdiction by virtue
its proprietorship. The acquisition of jurisdiction is dependent on the
of or cession of jurisdiction by the state. See Mason Co. v. Tax
Commission, 302 U.S. 97 (1937); James v. Dravo Contracting Co.,
U.S. at 141-42.
State consent to the exercise of Federal jurisdiction may be evidenced by a
specific enactment or by general constitutional or statutory provision.
of jurisdiction by the state also requires acceptance by the United States.
See Adams v. United States, 319 U.S. 312 (1943); Surplus
Co. v. Cook, 281 U.S. at 651-52. Whether or not the United States has
jurisdiction is a Federal question. See Mason Co. v. Tax
Commission, 302 U.S. at 197.
Prior to February 1,1940, it was presumed that the United States
accepted jurisdiction whenever the state offered it because the donation was
deemed a benefit. See Fort Leavenworth R.R. Co. v. Lowe, 114
at 528. This presumption was reversed by enactment of the Act of February
1940, codified at 40 U.S.C. § 255. This statute requires the head or
authorized officer of the agency acquiring or holding property to file with
state a formal acceptance of such "jurisdiction, exclusive or partial as he
deem desirable," and further provides that in the absence of such filing "it
shall be conclusively presumed that no such jurisdiction has been acquired."
See Adams v. United States, 319 U.S. 312 (district court is
jurisdiction to prosecute soldiers for rape committed on an army base prior
filing of acceptance prescribed by statute). The requirement of 40 U.S.C.
255 can also be fulfilled by any filing satisfying state law. United
v. Johnson, 994 F.2d 980, 984-86 (2d Cir. 1993). The enactment of 40
§ 255 did not retroactively affect jurisdiction previously acquired.
See Markham v. United States, 215 F.2d 56 (4th
cert. denied, 348 U.S. 939 (1954); United States v.
Heard, 270 F. Supp. 198, 200 (W.D. Mo. 1967).
COMMENT: In summary, the United States may exercise plenary
jurisdiction over lands within state borders:
- Where it reserved such jurisdiction upon entry of the state into
- Where, prior to February 1, 1940, it acquired property for a
purpose enumerated in the Constitution with the consent of the state;
- Where it acquired property whether by purchase, gift or eminent
domain, and thereafter, but prior to February 1, 1940, received a cession of
jurisdiction from the state; and
- Where it acquired the property, and/or received the state's
or cession of jurisdiction after February 1, 1940, and has filed the
[cited in USAM 9-20.100]