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In United States law, a federal enclave is a parcel of Federal lands within a state considered under the Special Maritime and Territorial Jurisdiction of the United States.18 U.S.C. §7(3). These enclaves are used for the many different functions of the U.S. federal government including post offices, arsenals, dams, road, etc.; many are usually owned, secured, and administered by the U.S. federal government itself. The U.S., in many cases, has also received similar jurisdictional authority over privately owned properties which it leases, as well as privately owned and occupied properties which are located within the exterior boundaries of a large area (such as the District of Columbia and various national parks) which a state has ceded jurisdiction to. United States Department of Justice Criminal Resource Manual § 1630.
Since the late 1950s, it has been an official federal policy that states should have full concurrent jurisdiction on all federal enclaves,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. an approach endorsed by some legal experts.Roger W. Haines, Jr., Federal Enclave Law (Atlas Books 2011) pp. 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."). In 1960, the year of the latest comprehensive inquiry, 7% of federal property had enclave status. Of the land with federal enclave status, 57% (4% of federal property, almost all in Alaska and Hawaii) were under "concurrent" state jurisdiction. The remaining 43% (3% of federal property), on which some state laws do not apply, was scattered throughout the U.S. In 1960, there were about 5,000 enclaves with about one million people living on them altogether. While a comprehensive inquiry has not been performed since 1960, these statistics are likely much lower today since many federal enclaves were military bases that have since been closed and/or transferred out of federal ownership.
Based on the "Friction Not Fiction" doctrine, residents of federal enclaves have the right to vote in the elections of the state in which the federal enclave is situated. This was challenged by a Maryland law in 1968, the subject of the case Evans v. Cornman; the case was decided by the Supreme Court in 1970 and overruled the Maryland law, thus upholding the voting rights of enclave residents and establishing that they should be regarded as residents of the state in question. Evans v. Cornman, 398 U.S. 419, 422, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970).
Federal enclaves are to be distinguished from federal territories and possessions administered under ; the latter once included all the territory that has since become states and still includes insular territories Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and others. Historically, Congress has not exercised a full array of state-like powers over such territories but has tried to organize them into self-governing entities—as was done with the Northwest Ordinance and the Southwest Ordinance.
Because of the Enclave Clause, whenever a state government consented to the purchase of property by the federal government for a needful building, the U.S. 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.Section 355 of the Revised Statutes of the United States. Moreover, the U.S. Attorneys General ruled that, in consenting to purchase, the states could reserve no jurisdiction except for the service of criminal and civil processes.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.
Because state laws did not apply to federal enclaves, Congress provided a few basic criminal laws in the Federal Crimes Act of 1790, later adopting a series of Assimilative Crimes Acts and "federalizing" each state's crimes by making them prosecutable in federal courts.The current Assimilative Crimes Act is at 18 U.S.C. § 13. The Assimilative Crimes Act only applies to federal properties where the federal government has obtained exclusive or concurrent jurisdiction; federal property under a proprietorial interest only cannot assimilate state laws and enforce them as federal laws.
Under the doctrine of extraterritoriality, a federal enclave was treated as a "state within a state" until 1953; therefore, enclave residents were not residents of the overarching state.1957 Report, supra note 6 at 238–39. As a result, they could not vote in state elections, Arledge v. Mabry, 52 N.M. 303, 197 P.2d 884 (1948). attend public schools, Schwartz v. O'Hara Township School Dist., 375 Pa. 440, 100 A.2d 621 (1953). obtain a divorce in state courts, Chaney v. Chaney, 53 N.M. 66, 201 P.2d 782 (1949). or call upon state law enforcement officers to protect them from criminals. Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455 (1939).
To distinguish earlier "exclusive" jurisdiction enclaves from those acquired after the state amendments, the newer enclaves were labeled "partial" jurisdiction—the specific label "concurrent" was given to enclaves over which the state had full jurisdiction. Finally, non-enclave federal property was called "proprietorial interest only."1957 Report, supra note 6 at 11.
In 1950, without addressing the jurisdictional issue directly, Congress passed legislation providing federal financial aid to schools in localities impacted by federal facilities.20 U.S.C. §§ 236 et seq. Six years later, in 1956, the government reported that because of this federal aid, "not a single child is being denied the right to a public school education because of his residence on a federal enclave".1956 Report, supra note 2 at 55.
Earlier, courts in Kansas, Georgia, and New Mexico held they had no jurisdiction to grant divorces to residents of federal enclaves. After each state amended its divorce statutes to permit such divorces, however, court decisions in each state have upheld the validity of these statutes. 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). Today, every state treats enclave residents as residents of the state for purposes of divorce proceedings.Haines, supra Note 3 at 42.
Additionally, federal government reports in 1956 and 1957 concluded that the states should have full concurrent jurisdiction on all federal enclaves.1956 Report, supra note 3 at 70; 1957 Report, supra note 6 at viii. In 1969, the Public Land Law Review Commission published a report on developments since the 1956 and 1957 reports, observing that those reports had been successful in changing federal agency policy and limiting further acquisition of federal enclaves.1969 Report, note 2 at 52. The 1969 report said that in 1960, there were about 5,000 enclaves with about a million people living on them.Id., at 146.
Evans also unanimously reaffirmed the holding in Offutt Housing that Congress could give states jurisdiction without relinquishing enclave status.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). The court relied in part on the fact that Congress had authorized the states to enforce many state laws on federal enclaves.Evans, 398 U.S. at 425. Under Evans, Congress has the power, if it chooses, to authorize the enforcement of all state laws on federal enclaves; it need not "retrocede" or "relinquish" federal jurisdiction. Instead, it can simply "permit" all state laws to apply to all federal property regardless of "federal enclave" status.See Haines, supra Note 3 at 9, 102–103, 213.
Some criminal laws have also been authorized by Congress to apply on federal enclaves, including "immigrant stations"8 U.S.C. § 1358. and Job Corps Centers.29 U.S.C. § 1705(d) (originally codified at 29 U.S.C. § 937(d)). In addition, the states' power to enforce their tax laws on federal enclaves necessarily includes the power to prosecute enclave residents criminally for violating those laws.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 non-payment of City tax from a resident of a federal enclave, regardless of whether the fine was characterized as "criminal or quasi-criminal").
In addition, the "friction not fiction" doctrine indicates that the courts can approve the application of state laws to federal enclaves to the same extent that they apply to the other 97% of federal lands (i.e., subject only to the limitations of the Supremacy Clause).Id. at 9, 107, 213. With regard to the states' ability unilaterally to apply their laws on federal enclaves, Evans noted that enclave residents:Evans, 398 U.S. at 424.
Nevertheless, Mississippi Tax I's holding—that the Twenty-first Amendment did not authorize a state "markup" on liquor—made it unnecessary to discuss enclave jurisdiction such that the "foreign lands" language was unnecessary.See discussion in Haines, supra note 3 at 104–106. On the other hand, in 1990, the Supreme Court treated Mississippi Tax I as an enclave case, citing it for the proposition that a state had no authority to regulate a transaction between an out-of-state liquor supplier and a federal military base under exclusive federal jurisdiction. North Dakota v. United States, 495 U.S. 423, 110 S.Ct. 1986, 109 L.Ed.2d 420 (1990).
Still, no court has suggested that Mississippi Tax I changed the "friction not fiction" rule of Howard and Evans. The Texas Court of Appeals noted the conflict and followed the "friction not fiction" rule in holding that the federal enclave at Red River Army Depot was part of Texas for state tax purposes. Aviall Services, Inc. v. Tarrant Appraisal Dist., 300 S.W.3d 441, 449 (Tex.App. 2009). In upholding a state tax on aircraft parts, the court distinguished Mississippi Tax I on the grounds that, unlike the liquor markup in that case, in Aviall Services, Inc. v. Tarrant Appraisal Dist.: Aviall Services, 300 S.W.3d at 449.
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. In re Terry Y., 101 Cal.App.3d 178, 161 Cal.Rptr. 452, 453 (1980).
1970: "Friction Not Fiction" reiterated
In 1970, a year after the 1969 report, the Supreme Court in Evans v. Cornman unanimously held that enclave residents have a right to vote in state elections. In reaching this result, Evans reiterated the "friction not fiction" doctrine of Howard v. Commissioners, and reaffirmed that enclave residents should be regarded as residents of the state.
Current legal status
State laws enforceable
In addition to laws mentioned by Evans, such court-applied laws include state probate laws,1957 Report, supra note 16 at 235, n.57. public welfare laws, Board v. Donoho, 344 Colo. 321, 356 P.2d 267 (1960). laws relating to mentally ill persons, Board v. McCorkle, 98 N.J. Super. 451, 237 A.2d 640 (1968). juvenile delinquency, Matter of Charles B, 196 Misc.2d 374, 765 N.Y.S.2d 191 (2003). protection of abused and neglected children, State v. Debbie F., 120 N.M. 665, 905 P.2d 205 (1995). and domestic violence restraining orders. Cobb v. Cobb, 406 Mass. 21, 545 N.E. 2d 1161 (1989).
State laws not enforceable
There are other cases which hold that some state laws do not apply on enclaves, including most state , liquor laws, United States v. State Tax Comm. of Mississippi, 412 U.S. 363, 378, 93 S.Ct. 2183, 2192, 37 L.Ed.2d 1 (1973). personal property taxes, Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 84 S.Ct. 857, 11 L.Ed.2d 782 (1964). some utility regulations, Black Hills Power and Light Co. v. Weinberger, 808 F.2d 665 (8th Cir. 1987). human rights laws, Hooda v. Brookhaven Nat. Laboratory, 659 F.Supp.2d 382 (E.D. N.Y. 2009). anti-discrimination laws, 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). racial discrimination laws, Taylor v. Lockheed Martin Corp., 78 Cal.App.4th 472, 482, 92 Cal.Rptr.2d 873 (2000). whistleblower laws, Stiefel v. Bechtel Corp., 497 F.Supp.2d 1138 (S.D. Cal. 2007) (Stiefel I). state occupational safety and health (OSHA) laws, 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). wage and Working time laws, Manning v. Gold Belt Falcon, LLC, 681 F.Supp.2d 574 (D. N.J. 2010). and right-to-work laws. 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).
Effect of Mississippi Tax I opinion
Many Supreme Court decisions regarding federal enclaves are based on the extraterritoriality doctrine that was abolished by Howard and Evans. They often rely on Obiter dicta in the Supreme Court's 1973 Mississippi Tax I opinion ( United States v. State Tax Commission of Mississippi) 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".
Recent developments in National Forests
For many years, it was believed that "the vast majority" of National Forests were not federal enclaves.See, e.g., 1957 Report, supra Note 6, at 114. However, federal appeals courts in North Carolina, Michigan, and Oklahoma ruled in the 1990s and 2000s that "cession" statutes in each of those states ceded concurrent jurisdiction over National Forest lands acquired by the United States before February 1, 1940. 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). Depending on the wording of "cession" statutes in other states, these cases may mean that the United States has considerable concurrent "enclave" jurisdiction in National Forests.See discussion, with particular reference to California and Missouri statutes in Haines, supra Note 3, at 134–154.
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