Federal and State Power Over Public Lands

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Article IV, Section 3, Clause 2:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

The Property Clause provides that public lands may only be disposed of with congressional authorization.1 The Supreme Court has held “that the power of Congress is exclusive, and that only through its exercise in some form can rights in lands belonging to the United States be acquired.” 2 However, the Court held that, by being aware of and doing nothing to halt the long-time practice of presidents withdrawing land from the public domain by Executive Orders, Congress had acquiesced to the practice.3 In 1976, Congress reversed course by passing legislation establishing procedures for land withdrawals and explicitly repealing congressional acquiescence to the practice, as well as any implicit executive withdrawal authority.4

Congress may dispose of public property in a manner that furthers public policy, as determined exclusively by Congress.5 The Court has likened congressional authority over federal land within states to that of states’ police power.6 The Court has explained that “[t]he general government doubtless has a power over its own property analogous to the police power of the several states, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case.” 7 In its 1976 Kleppe v. New Mexico decision, the Court restated the applicable principles governing Congress’s power under the Property Clause unanimously upholding a federal law to protect wild-roaming horses and burros on federal lands.8 The Court explained that the Property Clause, in broad terms, gives Congress the power to determine what are “'needful’ rules ‘respecting’ the public lands.” 9 The Court continued that, while the outer limits of this authority is unsettled, “we have repeatedly observed that '[t]he power over the public land thus entrusted to Congress is without limitations.’” 10

Over the course of the Nation’s history, the Court has held that Congress’s authority over public land includes: the right “to prescribe the times, the conditions, and the mode of transferring this property, or any part of it, and to designate the persons to whom the transfer shall be made” 11 ; “to declare the dignity and effect of titles emanating from the United States” 12 ; to determine the validity of grants which precede the government’s acquisition of the property13 ; to exempt lands privately acquired under the homestead laws from previously contracted debts14 ; to withdraw land from settlement and to prohibit grazing thereon15 ; to restrict the construction of fencing on private land that abuts public land to prevent the unlawful occupation of public property16 ; to limit destruction of federal property17 ; to define and abate nuisances that affect the property18 ; to prohibit the introduction of liquor on lands purchased by the federal government for an Indian reservation19 ; and to protect wildlife located on public land.20

In Kleppe, the Court recognized that Congress’s power over federal lands includes power to regulate the lands, stating “Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant the Property Clause.” 21 No state may tax federal property pursuant to state authority,22 nor may state legislation interfere with the power of Congress under the Property Clause or embarrass its exercise.23 Moreover, when Congress acts with respect to lands covered by the Clause, its legislation preempts conflicting state laws.24 Thus, by virtue of the Treaty of 1868 through which the federal government agreed to allow an Indian tribe living on a reservation in Arizona to engage in self-governance, the tribal court, rather than Arizona state courts, had jurisdiction over a suit for a debt owed by a tribal resident to a non-Indian operating a federally licensed store on the reservation.25

Federal law resolves questions of whether title to land formerly owned by the United States has been conveyed to another.26 After title has passed from the United States, however, “that property, like all other property in the state, is subject to the state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.” 27 Courts also will look to state law to address questions of precisely what property the federal government conveyed to a grantee.28 However, a state statute enacted after a federal grant of property cannot operate to vest in the state rights that either remained in the United States or passed to its grantee.29

1: United States v. Fitzgerald, 40 U.S. (15 Pet.) 407, 421 (1841). See also Utah Power & Light Co. v. United States, 243 U.S. 389, 403–04 (1917).
2: Utah Power & Light Co., 243 U.S. at 404.
3: Sioux Tribe v. United States, 316 U.S. 317, 324–25 (1942); United States v. Midwest Oil Co., 236 U.S. 459, 469 (1915).
4: Pub. L. No. 94–579, § 704(a), 90 Stat. 2792 (1976).
5: United States v. City of San Francisco, 310 U.S. 16, 30 (1940) ( “The power over the public land thus entrusted to Congress is without limitations. And it is not for the courts to say how that trust shall be administered. That it for Congress. Thus, Congress may constitutionally limit the disposition of the public domain to a manner consistent with its views of public policy.” (internal citations omitted)). See also Light v. United States, 220 U.S. 523, 535–36 (1911).
6: Camfield v. United States, 167 U.S. 518, 525 (1897).
7: Id.
8: Kleppe v. New Mexico, 426 U.S. 529, 539 (1976).
9: Id.
10: Id. (quoting City of San Francisco, 310 U.S. at 29–30). See also Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 294–295 (1958); Alabama v. Texas, 347 U.S. 272, 273 (1954); FPC v. Idaho Power Co., 344 U.S. 17, 21 (1952); United States v. California, 332 U.S. 19, 27 (1947); Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872); United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840).
11: Gibson, 80 U.S. (13 Wall.) at 99. See also Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902); Irvine v. Marshall, 61 U.S. (20 How.) 558, 566–67 (1858).
12: Bagnell v. Broderick, 38 U.S. (13 Pet.) 436, 450 (1839). See also Field v. Seabury, 60 U.S. (19 How.) 323, 332 (1857).
13: Tameling v. U.S. Freehold & Immigr. Co., 93 U.S. 644, 663 (1877). See also Maxwell Land-Grant Case, 121 U.S. 325, 365–66 (1887).
14: Ruddy v. Rossi, 248 U.S. 104, 107 (1918).
15: Light v. United States, 220 U.S. 523, 535–36 (1911). See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77, 93–94 (1873).
16: Id. See also United States v. Waddell, 112 U.S. 76, 79–80 (1884); Jourdan v. Barrett, 45 U.S. (4 How.) 169 (1846).
17: Hunt v. United States, 278 U.S. 96, 101 (1928).
18: Camfield v. United States, 167 U.S. 518, 525 (1897).
19: United States v. McGowan, 302 U.S. 535, 539 (1938).
20: Kleppe v. New Mexico, 426 U.S. 529, 539 (1976); McKelvey v. United States, 260 U.S. 353, 359 (1922).
21: Kleppe, 426 U.S. at 543 (citing Mason Co. v. Tax Comm’n of Wash., 302 U.S. 186, 197 (1937); Utah Power & Light Co. v. United States, 243 U.S. 389, 403–405 (1917); Ohio v. Thomas, 173 U.S. 276, 283 (1899)). See also Wilson v. Cook, 327 U.S. 474, 487–88 (1946); Surplus Trading Co. v. Cook, 281 U.S. 647, 650 (1930).
22: Van Brocklin v. Tennessee, 117 U.S. 151 (1886).
23: Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872). See also Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902); Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858).
24: Kleppe, 426 U.S. 529; Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 593–94 (1987) (applying traditional preemption analysis to a question of whether state environmental laws apply to a private company utilizing an unpatented mining permit on federal land).
25: Williams v. Lee, 358 U.S. 217, 223 (1959).
26: United States v. Oregon, 295 U.S. 1, 28 (1935) ( “The laws of the United States alone control the disposition of title to its lands. The states are powerless to place any limitation or restriction on that control.” ).
27: Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 517 (1839).
28: Oklahoma v. Texas, 258 U.S. 574, 595 (1922) ( “if its [i.e., a federal treaty or statute conveying federal property] intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the state in which the land lies.” ).
29: United States v. Oregon, 295 U.S. at 29 ( “In construing a conveyance by the United States of land within a state, the settled and reasonable rule of construction of the state affords a guide in determining what impliedly passes to the grantee as an incident to land expressly granted.” ).