Installation jurisdiction refers to the type of legal authority exercised by the DAF over an installation. There are four main types of jurisdiction (arranged from greatest DAF authority to least):
- Exclusive federal jurisdiction
- Concurrent federal jurisdiction
- Partial federal jurisdiction
- Proprietary jurisdiction.
Depending on your installation, more than one type of jurisdiction may apply
Title
Title, in relation to a military installation, is virtually the same as in a private real estate transaction. Title simply means legal ownership—the legal right to the use and possession of a designated piece of property.
In most cases, the DAF has title to the property on which its installations are located. However, some installations sit on leased property or have portions of the base sitting on leased property.
The installation’s civil engineer (CE) squadron maintains the deed or lease to the installation. Questions concerning title to the installation’s real property should be referred to the servicing Staff Judge Advocate.
Jurisdiction
On the other hand, jurisdiction is a distinct concept separate from title. It encompasses the authority to create and enforce laws, rules, and regulations. Having title does not automatically confer legislative jurisdiction.
Sources of Legislative Jurisdiction
Article I, Section 8, Clause 17, of the United States Constitution confers upon Congress the power to exercise legislative jurisdiction over federal property. The government can acquire the right to exercise legislative jurisdiction in three ways.
Purchase and Consent: The federal government purchases the property, and the state legislature consents to giving the federal government jurisdiction
Cession: After the federal government acquires title to property, the state may cede jurisdiction, in whole or in part, to the federal government. The federal government can later retrocede jurisdiction back to the state. 10 U.S.C. § 2683. Prior to 1940, it was presumed that jurisdiction was ceded at the time the government acquired the property. Since 1940, however, there must be an affirmative acceptance of jurisdiction before the federal government will have legislative jurisdiction. 40 U.S.C. § 3112. Check the deed to determine when the federal government acquired the property
Reservation: At the time the federal government ceded property to establish a state, particularly in the western United States, it reserved some of the land as federal property. In these cases, the federal government retained legislative jurisdiction over the property it reserved. Again, check the deed.
What are the types of Legislative Jurisdiction?
The inquiry does not stop with determining if the federal government has legislative jurisdiction. It is also necessary to determine what type of jurisdiction it has. There are four types of legislative jurisdiction
Exclusive Jurisdiction: As the term implies, the state grants all of its authority to the federal government in an area and this type of jurisdiction gives the federal government sole authority to legislate in that area. Unless exclusive jurisdiction was reserved at the time land was granted to the state, it is necessary to go back to the state for exclusive jurisdiction. The state may have elected to reserve some authority, e.g., authority to serve civil and criminal process on the property. If the state failed to reserve such authority, it is waived. For some years now, it has been federal policy not to acquire exclusive jurisdiction. While at first blush this may seem odd, there are legitimate reasons for the policy. For instance, state and local authorities may be better able to deal with particular situations (e.g., child welfare services, domestic relations matters) than the federal government
Concurrent Jurisdiction: Both the state and federal governments retain all their legislative authority. In other words, the state grants the federal government legislative jurisdiction over an area, but reserved to itself the right to exercise the same authority at the same time, as long as the state does not interfere with the federal mission. In the event of conflict, the federal government prevails under the Supremacy Clause of the Constitution.
Partial Jurisdiction: Both the state and federal government have some legislative authority, but neither one has absolute power. For instance, the state may have reserved the authority to impose and collect taxes, or it may have ceded only criminal jurisdiction over the property. Again, federal supremacy applies in the event of a conflict.
Proprietary Jurisdiction: In this case, the federal government has acquired some right or title to an area in a state but has not obtained any of the state’s authority to legislate over the area. The United States is simply a tenant with virtually no legislative authority. The federal government maintains immunity and supremacy for inherently governmental functions. The only federal laws that apply are those that do not rely upon federal jurisdiction (e.g., espionage, bank robbery, tax fraud, counterfeiting). However, the installation commander can still exclude civilians from the area pursuant to the commander’s inherent authority.
UCMJ Articles:
- Article 15: https://yountslaw.com/nonjudicial-punishment-article-15-njp/
- Article 92: https://yountslaw.com/what-is-article-92/
- Article 128: https://yountslaw.com/article-128-assault-military-lawyer/
- Article 120: https://yountslaw.com/military-criminal-defense-of-sexual-assault/
- Military Medical: https://yountslaw.com/military-medical-professional-defense/
- Military Religious Freedom & Religious Accommodations: https://yountslaw.com/military-religious-freedom/
- UCMJ Military Corrections and Discharge: https://yountslaw.com/ucmj-military-corrections-and-discharge/
- Article 112a: https://yountslaw.com/article-112a-of-the-ucmj-drug-crimes/
