Legislative jurisdiction is arguably one of the most important provisions of the United States Constitution, as it establishes clear guidelines on the balance of power between the central government and the states. Enumerated in Article I, Section 8, Clause 17 of the Constitution, it determines what geographical areas the federal government may legislate over and therefore exercise executive powers within a sovereign state. This provision is directly tied to state governance of public lands and whether or not federal agencies like the Bureau of Land Management and U.S. Forest Service have any authority to govern the vast public estate.
Areas where the federal government has obtained concurrent or exclusive legislative jurisdiction are known as federal enclaves and fall within the special maritime and territorial jurisdiction of the United States.
Legislative jurisdiction refers to the powers acquired by the federal government from state legislatures to exercise certain executive powers within certain geographical areas. It determines when federal enclave laws are applicable, requiring the federal government to obtain authority from states to enforce such laws.
There are three different types of legislative jurisdiction:
- Proprietary (or interest-only) legislative jurisdiction, where the federal government has no jurisdiction to legislate over the land.
- Concurrent legislative jurisdiction, where both the state and the federal government hold jurisdiction to enforce state or federal laws.
- Exclusive legislative jurisdiction, where the state has given up all authority to the federal government.
The federal government holds proprietary (interest-only) legislative jurisdiction over the overwhelming vast majority of land in the United States. This means that federal agencies—including the Bureau of Land Management, the U.S. Forest Service, and other federal agencies—have absolutely no authority to enforce federal laws or regulations as they do with travel management planning, resource management planning, and other mismanagement activities.
This limited legislative jurisdiction is recognized by the federal government in numerous reports, including the 1957/1962 Eisenhower report on federal legislative jurisdiction, the DOJ 1969 Federal Criminal Jurisdiction report and Criminal Resource Manuals, Army jurisdiction regulations, and military administrative law handbooks.
It is, of course, the Supreme Court that has granted the federal government fiat powers beyond their constitutional authority through the Property Clause and the Supremacy Clause, which in fact do not override the Enclave Clause. The Supreme Court in and of itself does not have the authority to grant itself or any other branch of government powers. That can only be done by Congress through a constitutional amendment.
This is just one reason why we see numerous problems continue unchecked on public lands. It’s because the federal government’s powers are fiat and entirely reliant on limited state resources, which have been displaced in favor of federal authority that doesn’t exist. This is disruptive to a system that depends on the separation of powers. This is why Arizona Backcountry Explorers has consistently applied the foundation that state law should govern our public lands. Not only is state law more equipped to handle local concerns, but it also safeguards the systems on which state functions depend.
The federal government can obtain legislative jurisdiction within a state in three different ways:
State Statutes Ceding Jurisdiction for the Purposes of Article I, Section 8, Clause 17 of the United States Constitution
In Arizona, two laws outline how the state can grant legislative jurisdiction over any area acquired by the federal government for the purposes of Article I, Section 8, Clause 17. This requires a joint resolution approved by the state legislature and signed by the governor.
Furthermore, the state retains the right to serve processes on land where concurrent or exclusive jurisdiction has been granted to the federal government.
37-620.02. State consent to acquisition of land by the United States for exclusive jurisdiction
Pursuant to article I, section 8, clause 17 of the Constitution of the United States, the consent of this state may be given to the acquisition of any other privately owned real property within this state by the United States only upon the governor’s signing a joint resolution adopted by the legislature to that effect. The joint resolution shall recite the legal description of the land and the purposes to which the state consents that the property may be used.
37-611. Acquisition of lands by United States for penal purposes
The consent of the state may be given pursuant to section 37-620.02 in accordance with the seventeenth clause, eighth section, of the first article of the Constitution of the United States to the acquisition by the United States by purchase, lease, condemnation or otherwise of any land in the state required for erection of a penitentiary, prison, honor farm, detention center or any correctional institution of any kind and other needful buildings or for any other penal or correctional institutions of the government of the United States.
37-613. Power of state to serve process upon land ceded United States for penal purposes
Any land over which exclusive or concurrent jurisdiction is ceded by the state to the United States, the state retains concurrent jurisdiction with the United States for serving process, civil or criminal, issuing under the authority of the state, or any courts, or judicial officers thereof, upon any person amenable thereto, within the limits of the land ceded in like manner as if no cession had taken place.
Reservations by the United States at the Time of State Admission
Federal legislative jurisdiction can also be established through the Enabling Act. The Arizona–New Mexico Enabling Act of 1910, however, did not grant the federal government legislative jurisdiction over the land other than for disposition purposes. The Enabling Act explicitly declares that Arizona and its people forever disclaim all right and title to the unappropriated public lands lying within the state’s boundaries, and that the federal government retains exclusive jurisdiction over public land sales and disposition.
This means that the law establishing Arizona as a state declares that the federal government has authority only to dispose of the public domain lands within our borders. Many land-use advocates take this a step further, suggesting that the federal government shouldn’t own any land and that the State of Arizona should hold ownership. However, this view is flawed and is based on the incorrect assumption that the federal government holds exclusive legislative jurisdiction.
Despite the Enabling Act’s disclaimer of all right and title to the unappropriated public lands, the state still holds the authority to legislate over that land, and the federal government does not.
Public domain lands should be held in trust for the American people. What the government owns belongs to the public.
Over the Western public domain lands, the federal government and its various agencies are supposed to act as a servient estate that is subject to the rights of the dominant estate. The dominant estate holds the interest in roads, trails, water, minerals, and private land—all of which are governed by state laws.
Cession Statutes Granting Legislative Jurisdiction for Other Purposes
Article I, Section 8, Clause 17 requires the federal government, by cession statute, to obtain legislative jurisdiction in certain areas with the consent of the state legislature. These federal enclaves…
The following list, located in Arizona Revised Statutes § 37-620, shows all areas where the state legislature has granted concurrent legislative jurisdiction to the federal government. These are all federal enclaves where their borders, at the time of establishment, are considered federal enclaves in which federal law is applicable and the state has reserved concurrent jurisdiction to enforce state law.
37-620. Vesting of concurrent criminal jurisdiction in the United States over certain lands and areas
A. Concurrent criminal jurisdiction over any lands in this state heretofore reserved from public domain or acquired by the United States as identified in subsection D of this section, and any additions made to such lands, is hereby vested in the United States on completion of the conditions set forth in subsection B of this section, except that the jurisdiction of this state over such lands shall continue.
B. Concurrent criminal jurisdiction vests as to the lands in each area identified in subsection D of this section when the United States submits to the governor of this state a formal written request for concurrent criminal jurisdiction accompanied by a satisfactory legal description and plat of the area, and on approval by the governor granting concurrent jurisdiction the legal description and plat shall be filed by the governor with the county recorder of each county in which the land is situated. This state may withdraw jurisdiction over any land or area three years after written notification by the governor to the United States secretary of the interior.
C. The concurrent criminal jurisdiction hereby vested continues only as long as the United States continues to own or control the lands within those areas. In the case of any lands included within the boundaries of the areas set forth in subsection D of this section that are not owned or controlled by the United States, the jurisdiction does not change by operation of this section.
D. The lands subject to this section are all those lands that are owned or controlled by the United States and that are now or hereafter included within the exterior boundaries of:
1. The national park service lands consisting of:
(a) Canyon de Chelly national monument.
(b) Casa Grande Ruins national monument.
(c) Chiricahua national monument.
(d) Coronado national memorial.
(e) Fort Bowie national historic site.
(f) Glen Canyon national recreation area.
(g) Grand Canyon national park.
(h) Hohokam Pima national monument.
(i) Hubbell Trading Post national historic site.
(j) Lake Mead national recreation area.
(k) Montezuma Castle national monument.
(l) Navajo national monument.
(m) Organ Pipe Cactus national monument.
(n) Petrified Forest national park.
(o) Pipe Spring national monument.
(p) Saguaro national monument.
(q) Sunset Crater national monument.
(r) Tonto national monument.
(s) Tumacacori national monument.
(t) Tuzigoot national monument.
(u) Walnut Canyon national monument.
(v) Wupatki national monument.
2. Those lands administered by the bureau of reclamation or its successor agency of the United States department of the interior consisting of:
(a) Davis dam.
(b) Glen Canyon dam.
(c) Hoover dam.
(d) Imperial dam.
(e) Laguna dam.
(f) Parker dam.
3. Lands administered by the United States department of defense or its successor land management agency consisting of:
(a) The Barry M. Goldwater range. This subdivision is effective only after a memorandum of understanding has been completed with the sheriff of a county that has territory within the Barry M. Goldwater range to address lead investigative agency responsibilities on specific crimes and other coordinating matters. For the purposes of this subdivision, the Barry M. Goldwater range is defined by the military lands withdrawal act of 1999 (P.L. 106-65) and federal register volume 66, number 231, Friday, November 30, 2001.
(b) The Yuma proving ground. This subdivision is effective only after a memorandum of understanding has been completed with the sheriff of a county that has territory within the Yuma proving ground to address lead investigative agency responsibilities on specific crimes and other coordinating matters.
It can therefore be concluded that the federal government has no authority to close roads or govern the use of motorized vehicles whatsoever. The gates are erected only to frustrate your use of public roads, but they have absolutely no legal standing when state law defends your right to drive an automobile on a public road. Public land users should defy and ignore the locked gates and stand your ground on these fundamental principles.
