Federal Legislative Jurisdiction
Legislative jurisdiction is the authority to make and enforce laws. This topic concerns the transfer of the states legislative jurisdiction to the United States (cessions) and the return of that legislative jurisdiction to the state (retrocessions). This is a highly specialized area of law and the reader should not consider this overview to be complete or universal in its applicability or legal advice. The Commission can assist the public in determining the degree of state and federal legislative jurisdiction over a specific federal parcel, but it cannot provide advice on the legal implications of that status. For that, you must consult your own attorney.
Historically there have been many times when federal officials wanted the authority to enforce state civil and criminal law on federal lands. This is especially true in areas such as military reservations and national parks which can be far from local law enforcement resources and require special administration. In these situations, the state has often ceded (transferred) to the federal government its legislative authority on the property. The Legislature has delegated to the Commission the power to make cessions and accept retrocessions when requested by the United States.
Cessions of Legislative Jurisdiction
Transferring the state's legislative jurisdiction to the United States is accomplished through a cession of jurisdiction. Throughout its history, California has ceded differing degrees of its jurisdiction. Between 1852 and 1939, California ceded all of its civil and criminal jurisdiction to the United States over various tracts of federal lands. Today, however, it cedes only its criminal jurisdiction on the condition that the United States and California exercise that jurisdiction to the same degree. Below are brief descriptions of the various degrees of cessions of jurisdiction that California has ceded over the years:
- Exclusive Jurisdiction
The federal government has exclusive jurisdiction when the state cedes or transfers of all of its authority to enact and enforce its civil and criminal law over and on federal lands to the United States. Between 1852 and 1939 the Legislature ceded all of California's civil and criminal authority over federal lands purchased or condemned for military use and other government purposes as described in Article 1, section 8, clause 17 of the United States Constitution. Chapter 56, California Statutes of 1897 ceded exclusive jurisdiction over public domain land used as a military reservation. Lands under exclusive jurisdiction are frequently referred to as federal enclaves. Congress may permit the enforcement or exercise of current state law on the property.
- Partial Jurisdiction
In a cession of partial jurisdiction a state cedes all of its civil and criminal legislative authority except for powers it wishes to retain. In California the Legislature has chosen to only reserve back the power to tax private persons living and working on federal lands. Again, Congress may elect to allow certain state laws to be effective on federal lands that would otherwise be inconsistent with this degree of cession. Cessions of jurisdiction made between 1939 and 1961 reserved the power to tax.
- Concurrent Jurisdiction
When the state cedes concurrent jurisdiction, the United States and California exercise the same degree of civil and criminal legislative authority over the federal lands in question. Between 1961 and 1976, California ceded its legislative authority to establish concurrent jurisdiction with the United States.
- Concurrent Criminal Jurisdiction
Between 1976 and 2017 California ceded all of its criminal jurisdiction to the United States, reserving back to itself the right to exercise that same criminal jurisdiction on the federal lands in question. The state also reserved back all of its civil jurisdiction.
- Proprietorial Interest Only
When the United States has proprietorial jurisdiction over a parcel of land, it means that California has not made any cession or transfer of its legislative authority to the United States and that it retains all of its civil and criminal legislative authority. Nevertheless, the exercise of California law is subject to limitations imposed by federal law such as the Supremacy and Preemption Clauses and other federal laws superseding California law.
- Retrocessions of Legislative Jurisdiction
Retrocessions of jurisdiction occur when the United States returns all or part of the legislative jurisdiction previously ceded to it by California. In doing so, concurrent or proprietorial jurisdiction can be established. Retrocessions occur at the discretion of the United States and generally take place when there can be an enhancement of law enforcement or state services and benefits can be made available to persons living or working on a federal property.