Bingo! the feds do not have jurisdiction in most of the cases they
prosecute. Defendant has to question jurisdiction. If the secy of
state has on record of the state ceeding the land to the feds there is
no jurisdiction. Dravo basically said that because the land is owned
by the feds does not grant the feds juristiction. Here's an
UNITED STATES DEPARTMENT OF JUSTICE
U.S. ATTORNEYS MANUAL
CRIMINAL RESOURCE MANUAL
664 Territorial Jurisdiction Of the several categories listed in 18
U.S.C. § 7, Section 7(3)
is 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, and 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 fort, magazine, arsenal, dockyard, or other
As is readily apparent, this subsection, and particularly its
second clause, bears a striking resemblance to the 17th Clause of
Article I, Sec. 8 of the Constitution. This clause provides:
The Congress shall have power. . . To exercise exclusive
Legislation in all Cases whatsoever, over such District (not exceeding
ten 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 exercise 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.(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), citing, Surplus
Trading Co. v. Cook, 281 U.S. 647, 652 (1930).
Until the decision in Dravo, it had been generally accepted that
when the United States acquired property with the consent of the state
for any of the enumerated purposes, it acquired exclusive jurisdiction
by operation of law, and any reservation of authority by the state,
other than the right to serve civil and criminal process,
was inoperable. See Surplus Trading Co. 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 long as that did not
interfere with the United States' governmental functions, it became
necessary for Congress to amend 18 U.S.C. § 7(3), by adding the words
"so as," to restore criminal jurisdiction over those places
previously believed to be under exclusive Federal legislative
jurisdiction. See H.R. Rep. No. 1623, 76th Cong., 3d Sess. 1 (1940);
S. Rep. No. 1788, 76th Cong., 3d Sess. 1 (1940).
Dravo also settled that the phrase "other needful building" was not
to be strictly construed to include only military and naval
structures, but was to be construed as "embracing whatever structures
are found to be necessary in the performance of the function of the
Federal Government." See James v. Dravo Contracting Co., 302 U.S. at
142-43. It therefore properly embraces courthouses, customs houses,
post offices and locks and dams for navigation purposes.
The "structures" limitation does not, however, prevent the United
States from holding or acquiring and having jurisdiction over land
acquired for other valid purposes, such as parks and irrigation
projects since Clause 17 is not the exclusive method of obtaining
jurisdiction. The United States may also obtain jurisdiction by
reserving it when sovereign title is transferred to the 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
Contracting Co., 302 U.S. at 142; Surplus Trading Co. v. Cook, 281
U.S. at 650-52; Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525,
526-27, 538, 539 (1885).
The United States may hold or acquire property within the borders
of a state without acquiring jurisdiction. It may acquire title to
land necessary for the performance of its functions by purchase or
eminent domain without the state's consent. See Kohl v. United States,
91 U.S. 367, 371, 372 (1976). But it does not thereby acquire
legislative jurisdiction by virtue of its proprietorship. The
acquisition of jurisdiction is dependent on the consent of or cession
of jurisdiction by the state. See Mason Co. v. Tax Commission, 302
U.S. 97 (1937); James v. Dravo Contracting Co., 302 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. Cession of jurisdiction by the state also
requires acceptance by the United States. See Adams v. United States,
319 U.S. 312 (1943); Surplus Trading 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 U.S. at 528. This presumption was reversed by enactment of the Act
of February 1, 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 the state a formal acceptance of such
"jurisdiction, exclusive or partial as he may 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 without
jurisdiction to prosecute soldiers for rape committed on an army base
prior to 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 States v. Johnson, 994 F.2d 980, 984-86 (2d Cir.
1993). The enactment of 40 U.S.C. § 255 did not retroactively affect
jurisdiction previously acquired. See Markham v. United States, 215
F.2d 56 (4th Cir.), 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
criminal 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 consent
or cession of jurisdiction after February 1, 1940, and has filed the
665 Determining Federal Jurisdiction
When instances are reported to the United States Attorney of
offenses committed on land or in buildings occupied by agencies of the
Federal government -- unless the crime reported is a Federal
offense regardless of where committed, such as assault on a Federal
officer or possession of narcotics -- the United States has
jurisdiction only if the land or building is within the special
territorial jurisdiction of the United States.
PRACTICE TIP: A convenient method of determining the jurisdictional
status is to contact an appropriate attorney with the agency having
custody of the land. The regional counsel's office of the General
Services Administration usually has the complete roster of all Federal
lands and buildings in its region and can frequently provide a
definitive answer to jurisdiction. Each United States Attorney would
be well advised to request from each agency within the district a
the jurisdictional status claimed for each of its facilities and
assurance that documentation is available.
666 Proof of Territorial Jurisdiction
There has been a trend to treat certain "jurisdictional facts" that
do not bear on guilt (mens rea or actus reus) as non-elements of
the offense, and therefore as issues for the court rather than the
jury, and to require proof by only a preponderance that the offense
was committed in the territorial jurisdiction of the court to
establish that venue has been properly laid. See United States
v.Bowers, 660 F.2d 527, 531 (5th Cir. 1981); Government of Canal Zone
v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979); United States v. Black
Cloud, 590 F.2d 270 (8th Cir. 1979) (jury question); United States v.
Powell, 498 F.2d 890, 891 (9th Cir. 1974). The court in Government of
Canal Zone v. Burjan, 596 F.2d at 694-95, applied the preponderance
test to determinations of whether or not the offenses took place
within the Canal Zone which established not merely proper venue but
subject matter jurisdiction as well. Other cases, however, hold that
the issue of whether the United States has jurisdiction over the site
of a crime is a judicial question, see United States v. Jones, 480
F.2d 1135, 1138 (2d Cir. 1973), but that the issue of whether the act
was committed within the borders of the Federal enclave is for the
jury and must be established beyond a reasonable doubt. See United
States v. Parker, 622 F.2d 298 (8th Cir. 1980); United States v.
Jones, 480 F.2d at 1138. The law of your Circuit must be consulted to
determine which approach is followed in your district.
The decision in Burjan should be viewed with caution. The analogy
between territorial jurisdiction and venue has much to recommend it.
Nevertheless, it is important to recognize that the two are not of
equal importance. As the Burjan court noted, citing Fed. R. Crim.
P.12, subject matter jurisdiction is so important that it cannot be
waived and may be noticed at any stage of the proceeding, see
Government of the Canal Zone v. Burjan, 596 F.2d at 693, whereas the
Ninth Circuit in Powell rested its ruling that venue need be proved by
only a preponderance on the relative unimportance of venue as
evidenced by its waivability. There is a clear distinction between
the question of which court of a sovereign may try an accused for a
violation of its laws and whether the sovereign's law has been
violated at all.
Proof of territorial jurisdiction may be by direct or
circumstantial evidence, and at least at the trial level may be aided
by judicial notice. See United States v. Bowers, 660 F.2d at 530-31;
Government of Canal Zone v. Burjan, 596 F.2d at 694. Compare
government of Canal Zone v. Burjan, 596 F.2d 690 with United States v.
Jones, 480 F.2d 1135, concerning the role judicial notice may play
Post by Potassius
Does this have anything to do with the thingy that, if the said land on
the forest system has never been officially deeded to the fed by the
only the state has criminal jurisdiction on such federal forest lands
within that state, and not the federal government ?
Could somebelly post info to be clear on these matters ?