Article IV, Section 3, Clause 2 — Territory and Other Property

ArtIV.S3.C2.1 Property Clause Generally

Section 3, Clause 2 of Article IV empowers Congress to dispose of and regulate constitutionally acquired federal property.¹ The Supreme Court has explained that “[t]he occasion for the grant was the obvious necessity of making provision for the government of the vast territory acquired by the United States.”² The Supreme Court continued “[t]he grant was made in broad terms, and the power of regulation and disposition was not confined to territory, but extended to ‘other property belonging to the United States,’ so that the power may be applied . . . ‘to the due regulation of all other personal and real property rightfully belonging to the United States.’”³

The Constitution does not address how the government may exercise this power, but the Supreme Court historically has described Congress’s authority under the Property Clause as “plenary”⁴ and “without limitations.”⁵ The Court has summarized Congress’s authority, stating:

With respect to the public domain, the Constitution vests in Congress the power of

disposition and of making all needful rules and regulations. That power is subject to no

limitations. Congress has the absolute 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. No State legislation can interfere with this right or

embarrass its exercise; and to prevent the possibility of any attempted interference

with it . . . .⁶

Consequently, the Court has generally been deferential to congressional uses of Property Clause authority. In the 1840 decision United States v. Gratiot,⁷ for instance, the Supreme Court interpreted the Property Clause as applying to a lease of a lead mine on government land. The defendants in that case argued that the phrase “dispose of” should be interpreted narrowly to apply to the sale but not the leasing of property, and that, therefore, Congress lacks the power “to give or authorize leases of the public lands.”⁸ In upholding the lease, the Court rejected such a narrow interpretation, stating that “disposal must be left to the discretion of Congress.”⁹ Nearly a century later, the Court similarly rejected a narrow interpretation of the Property Clause in a challenge over a statutorily authorized contract through which the federal agency, the Tennessee Valley Authority, agreed to purchase power lines and real property for the construction of a dam. In that case, the Court held that the Clause extended to the disposal of potential electrical energy made available by the construction of a dam, as well as the transmission lines and other equipment necessary to generate the energy.¹⁰

ArtIV.S3.C2.2 Federal and State Power Over Public Lands

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

ArtIV.S3.C2.3 Power of Congress over Territories

Congress holds broad authority over territories of the United States.¹ The Court has held that, with regard to territories, “Congress has the entire dominion and sovereignty, national and local, Federal and state, and has full legislative power over all subjects upon which the legislature of a state might legislate within the state.”² Congress may legislate directly with respect to the local affairs of a territory, or it may delegate that power to the territories,³ except as limited by the Constitution.⁴ Pursuant to this authority, for example, Congress has prohibited territorial legislatures from enacting local or special laws on enumerated subjects.⁵ Further, Congress has extended the full range of constitutional protections enjoyed by United States residents in territories that have been incorporated as a part of the country by congressional action,⁶ but has not done so in “unincorporated” territories (that is, those territories not clearly on the pathway to U.S. statehood).⁷ Congress may establish, either directly or indirectly through authorization to a territorial legislature, “legislative courts” pursuant to the Property Clause rather than “constitutional courts” established by Article III.⁸ These legislative courts also may exercise admiralty jurisdiction despite the fact that admiralty jurisdiction may be exercised in the states only by Article III courts.⁹ Congress also may establish non-judicial territorial offices,¹⁰ and if the powers and duties assigned to these offices are “primarily local” in nature, then the manner of appointment for officials to these offices does not have to comply with Article II’s Appointments Clause.¹¹