Federal Enclave Law
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Highlights from Federal Enclave Law

by Roger W. Haines, Jr.

From the Introduction: 


In 1981, three family members were brutally murdered at Camp Lejeune Marine Corps Base in North Carolina. Fifteen-year-old Carlton Smith later allegedly confessed, but because juvenile charges were dismissed after he turned 21, the Fourth Circuit ruled that he could not be prosecuted in federal court as an adult. North Carolina promptly filed murder charges in State court, but the North Carolina Supreme Court vacated the charges because that part of the base where the murder occur­red was a federal enclave. The U.S. Supreme Court denied certiorari and Smith went Scot-free.


Similarly, in 2010, the Missouri Supreme Court struck down a defendant's State conviction and 40-year sentence (after he had served 17 years) because the post office that he had burglarized was one of the few post offices that is a federal enclave.


In 1998, an employee claimed a viola­tion of Puerto Rico's wage and hour laws while he was working for a federal contractor at several U.S. Naval Bases in Puerto Rico, parts of which were federal enclaves. The district judge called enclave law "illogical, unworkable, and simply unfair," and ruled that he could avoid deciding which of the employee's hours had been worked on enclaves by "abrogating" Puerto Rico's wage and hour laws on all federal property, even though the judge conceded that his ruling meant that workers on some Navy bases might not be covered by any labor law, because they were apparently not covered by federal labor laws.


An earlier district judge in a worker's compensation case, warned that without reform, federal enclave law would "be­come a sanctuary for the obsolete restrictions of the common law and a graveyard for the burial of every humane legisla­tion. . . .”


     These are a few examples of the many problems produced by federal enclaves. The first enclaves were created by the same clause of the Constitution that created the District of Columbia, i.e., Article I, Section 8, Clause 17. That clause gives the United States "exclusive Legislation" over the 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."


     As explained in Chapter Two, The Enclave Clause meant that whenever a State consented to the purchase by the United States of property for a needful building, the United States obtained exclusive legislative jurisdiction over that property. Early Congresses used the power of the purse to require State consent before federal money was spent on military forts, lighthouses, post offices, courthouses and other public works. Eventually, most States adopted general consent statutes, which meant that whenever the United States acquired prop­erty for a "needful building" within the State, the United States automatically obtained exclusive jurisdiction.

     To prevent federal enclaves from being havens for crimi­nals, Congress provided a few basic criminal laws in the Fed­eral Crimes Act of 1790. These proved to be inadequate, so Congress enacted a series of Assimilative Crimes Acts, federal­izing each State's crimes by making them prosecutable in fed­eral courts.

     In 1885, the Supreme Court held that in addition to con­senting to purchases, the States could "cede" jurisdiction to the United States, and the United States could "reserve" jurisdic­tion at the time of Statehood. The Court added that enclaves created by "cession" or "reservation" were not were not limit­ed to Clause 17 (needful building) purposes.

Congress has never provided any civil laws to govern fed­eral enclaves. To fill this gap, the Supreme Court adopted the "international law rule," holding that State civil laws in effect at the time the property was acquired became federal, but were "frozen" as of the date of acquisition.
This created a chaotic situation in which the law varied from enclave to enclave depending on when the particular parcel of property was acquired.


     The heart of the problem was the notion that an enclave was a "State within a State"—the so-called doctrine of extraterritor­iality. This doctrine meant that enclave residents had none of the rights or responsibilities of State residents; e.g., they could not vote in State elections, attend public schools, obtain a divorce, have an estate probated, or call upon State law en­forcement officers for protection against crime.


     Congress's early attempts to solve these problems consisted of "retroceding" jurisdiction over particular enclaves back to the State. However, as early as 1897, Congress began unilater­ally to "authorize" the States to enforce their laws on federal enclaves, including State laws governing wrongful death and personal injuries, State income, sales and fuel taxes, and State worker's compensation and unemployment insurance laws. These "authorizing" statutes were inconsistent with the extra­territoriality doctrine because they allowed the States to en­force their laws on federal enclaves.


     The extraterritoriality doctrine was further weakened by a 1937 Supreme Court decision holding that, in consenting to the purchase of property by the United States, the States could reserve some jurisdiction to themselves. As a result, the States began to amend their consent and cession statutes, initially to reserve the power to tax enclave residents, and later to reserve additional jurisdiction. Enclaves acquired after these amend­ments are said to be under "partial" federal jurisdiction, to distinguish them from earlier-acquired "exclusive" jurisdiction enclaves. See Chapter Two in this book.


     Effective February 1, 1940, Congress barred the creation of any new federal enclaves unless the head of the federal agency in charge of the property formally accepted the jurisdiction offered by the State by written notice to the governor. Unfor­tunately, this did not change the status of previously-acquired enclaves. Nor did it stop the formation of new enclaves, because during World War II, the Secretary of War sent numerous letters to State governors accepting jurisdiction over property used for military purposes—often without any indivi­dual description of the properties. Because the States were constantly amending their consent and cession statutes during this time, the amount of "partial" jurisdiction varied from parcel to parcel, depending on which State statute was in effect when a particular parcel was acquired.


     By the early 1950s, the number of people living on enclaves had grown quite large. Without waiting for Congressional authorization, many States simply applied their laws to enclave residents, allowing them to probate wills and obtain divorces in State courts. With regard to public education, Congress itself ignored the jurisdictional issue by providing money to school districts impacted by military families. Not surprisingly, every State quickly welcomed enclave children into its public schools.


     In 1953, in Howard v. Commissioners, the Supreme Court abolished the "extraterritoriality" doctrine. The Court said that "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." Adopting what is essentially a Supremacy Clause test, the Court famously said, "It is friction, not fiction, to which we must give heed."


     A year later, in 1954, President Eisenhower convened an Interdepartmental Committee to study the problems of federal enclaves and make recommendations. The Committee's 1956 Report concluded that there were many disadvantages to legislative jurisdiction and that the United States should have no legislative jurisdiction over the "large bulk" of federal prop­erty. The 1956 Report said that if any enclaves were retained, the States should have the right to tax private property, to enforce the State's criminal laws and to protect the civil and political rights of enclave residents. The next year, 1957, the Committee published the first-ever treatise on the law of fed­eral enclaves.


     An inventory of the jurisdictional status of all federal property was compiled as of June 30, 1962, and the numbers were summarized in a 1969 report to the Public Land Law Re­view Commission. The report showed that in 1960, "exclusive" and "partial" jurisdiction enclaves constituted only about three percent of federal property. An additional four percent of federal property was under "concurrent" State-federal juris­diction (almost all in Alaska and Hawaii). The other ninety-three percent was under so-called "proprietorial" status (no federal legislative jurisdiction). Thus, in 1960, the States had full jurisdiction on ninety-seven percent of federal property.


      In 1960, there were about 5,000 enclaves with around a million people living on them. These figures have never been updated, but they are surely smaller today due to military base closures and the transfer of jurisdiction to the States over many off-base military housing areas.


     The 1956, 1957, and 1969 Reports recommended that Con­gress solve the enclave problem by authorizing each federal agency to "retrocede" jurisdiction over individual enclaves pursuant to State acceptance procedures. Congress eventually gave some agencies this power, but it has seldom been used. Chapter Six of this book explains where the Reports went wrong and why retrocession has not worked.


     A more practical solution arrived a year after the 1969 Report, with the Supreme Court's 1970 holding in Evans v. Cornman that enclave residents have a right to vote in State elections. The Evans Court reiterated the "friction not fiction" doctrine of Howard v. Commissioners, and reaffirmed that en­clave residents should be regarded as residents of the State. Evans supported its holding by noting that the States had ex­tended many State laws to enclave residents, and it recognized Congress' power to authorize the States to enforce their laws on federal enclaves without "retroceding" jurisdiction and without State accep­tance.


     Since Howard and Evans, State courts have applied addition­al State laws to enclave residents, including wel­fare benefits, laws relating to mentally ill persons, juvenile delin­quen­cy, protection of abused and neglected children, and domestic violence restraining orders. Significantly, Congress has never abrogated any court ruling enforcing a State law on a federal enclave. Instead, after a Massachusetts court held that a State domestic violence restraining order could be enforced on a federal enclave, Congress extended that ruling to all federal enclaves. These developments are discus­sed in Chapter Four of this book.


     As a result of Congress' authorizing statutes and the States' unilateral application of many of their laws to enclaves, there are surprisingly few State laws that do not apply on enclaves today. Those that do not apply include most State criminal laws, liquor laws, personal property taxes, some utility regu­lations, racial discrimination and wrongful termination laws, wage and hour laws, and right-to-work laws. See Chapter Five in this book.


     Many of the decisions that bar application of State laws are based on the extraterritoriality doctrine that was abolished by Howard and Evans. They often rely on the Supreme Court's 1973 Mississippi Tax I opinion which ignored Howard and Evans and instead favorably quoted the district court's asser­tion that enclaves are "foreign land" and "federal islands which no longer constitute any part of Mississippi nor function under its control."


     It is possible that the next Supreme Court decision will resolve the apparent conflict between Mississippi Tax and the Howard-Evans line of cases by restoring the extraterritoriality doctrine. But it appears far more likely that the Supreme Court will reaffirm the "friction, not fiction" doctrine, and that it will even­tually approve full State legislative jurisdiction on federal enclaves to the same extent that these State laws already apply on the other ninety-seven percent of federal property—that is, limited only by the Supremacy Clause and other limitations on State power. As explained in Chapter 10, the Supremacy Clause today provides more protection against State interference than the Enclave Clause.


     Allowing the States to exercise complete concurrent juris­diction on all federal enclaves would resolve many problems. If the States had concurrent jurisdiction, the confusing hodge-podge of jurisdictional lines for State law enforcement officers would disappear. And the arbitrariness of applying some State civil laws and regulations to some parts of a federal installation but not others would finally end.


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