Annotation 17 - Article IV


Clause 2. Property of the United States


Methods of Disposing Thereof

The Constitution is silent as to the methods of disposing of property of the United States. In United States v. Gratiot, 292 in which the validity of a lease of lead mines on government lands was put in issue, the contention was advanced that ''disposal is not letting or leasing,'' and that Congress has no power ''to give or authorize leases.'' The Court sustained the leases, saying ''the disposal must be left to the discretion of Congress.'' 293 Nearly a century later this power to dispose of public property was relied upon to uphold the generation and sale of electricity by the Tennessee Valley Authority. The reasoning of the Court ran thus: the potential electrical energy made available by the construction of a dam in the exercise of its constitutional powers is property which the United States is entitled to reduce to possession; to that end it may install the equipment necessary to generate such energy. In order to widen the market and make a more advantageous disposition of the product, it may construct transmission lines and may enter into a contract with a private company for the interchange of electric energy. 294  

Public Lands: Federal and State Powers Thereover

No appropriation of public lands may be made for any purpose except by authority of Congress. 295 However, the long-continued practice of withdrawing land from the public domain by Executive Orders for the purpose of creating Indian reservations has raised an implied delegation of authority from Congress to take such action. 296 The comprehensive authority of Congress over public lands includes the power to prescribe the times, conditions, and mode of transfer thereof and to designate the persons to whom the transfer shall be made, 297 to declare the dignity and effect of titles emanat ing from the United States, 298 to determine the validity of grants which antedate the government's acquisition of the property, 299 to exempt lands acquired under the homestead laws from previously contracted debts, 300 to withdraw land from settlement and to prohibit grazing thereon, 301 to prevent unlawful occupation of public property and to declare what are nuisances, as affecting such property, and provide for their abatement, 302 and to prohibit the introduction of liquor on lands purchased and used for an Indian colony. 303 Congress may limit the disposition of the public domain to a manner consistent with its views of public policy. A restriction inserted in a grant of public lands to a municipality which prohibited the grantee from selling or leasing to a private corporation the right to sell or sublet water or electric energy supplied by the facilities constructed on such land was held valid. 304  

Unanimously upholding a federal law to protect wild-roaming horses and burros on federal lands, the Court restated the applicable principles governing Congress' power under this clause. It empowers Congress to act as both proprietor and legislature over the public domain; Congress has complete power to make those ''needful rules'' which in its discretion it determines are necessary. When Congress acts with respect to those lands covered by the clause, its legislation overrides conflicting state laws. 305 Absent action by Congress, however, States may in some instances exercise some jurisdiction over activities on federal lands. 306  

No State can tax public lands of the United States within its borders, 307 nor can state legislation interfere with the power of Congress under this clause or embarrass its exercise. 308 Thus, by virtue of a Treaty of 1868, according self-government to Navajos living on an Indian Reservation in Arizona, the tribal court, rather than the courts of that State, had jurisdiction over a suit for a debt owed by an Indian resident thereof to a non-Indian conducting a store on the Reservation under federal license. 309 The question whether title to land which has once been the property of the United States has passed from it must be resolved by the laws of the United States; after title has passed, ''that property, like all other property in the state, is subject to 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.'' 310 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. 311 But a state statute enacted subsequently to a federal grant cannot operate to vest in the State rights which either remained in the United States or passed to its grantee. 312  

Territories: Powers of Congress Thereover

In the territories, Congress has the entire dominion and sovereignty, national and local, and has full legislative power over all subjects upon which a state legislature might act. 313 It may legislate directly with respect to the local affairs of a territory or it may transfer that function to a legislature elected by the citizens thereof, 314 which will then be invested with all legislative power except as limited by the Constitution of the United States and acts of Congress. 315 In 1886, Congress prohibited the enactment by territorial legislatures of local or special laws on enumerated subjects. 316 The constitutional guarantees of private rights are applicable in territories which have been made a part of the United States by congressional action 317 but not in unincorporated territories. 318 Con gress may establish, or may authorize the territorial legislature to create, legislative courts whose jurisdiction is derived from statutes enacted pursuant to this section other than from Article III. 319 Such courts may exercise admiralty jurisdiction despite the fact that such jurisdiction may be exercised in the States only by constitutional courts. 320  



[Footnote 292]   39 U.S. (14 Pet.) 526 (1840).

[Footnote 293] Id., 533, 538.

[Footnote 294] Ashwander v. TVA, 297 U.S. 288, 335 -340 (1936). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938).

[Footnote 295] United States v. Fitzgerald, 40 U.S. (15 Pet.) 407, 421 (1841). See also California v. Deseret Water, Oil & Irrigation Co., 243 U.S. 415 (1917); Utah Power & Light Co. v. United States, 243 U.S. 389 (1917).

[Footnote 296] Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Midwest Oil Co., 236 U.S. 459 ,469 (1915).

[Footnote 297] Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872); see also Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902).

[Footnote 298] Bagnell v. Broderick, 38 U.S. (13 Pet.) 436, 450 (1839). See also Field v. Seabury, 60 U.S. (19 How.) 323, 332 (1857).

[Footnote 299] Tameling v. United States Freehold & Immigration Co., 93 U.S. 644, 663 (1877). See also Maxwell Land-Grant Case, 121 U.S. 325, 366 (1887).

[Footnote 300] Ruddy v. Rossi, 248 U.S. 104 (1918).

[Footnote 301] Light v. United States, 220 U.S. 523 (1911). See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77 (1873).

[Footnote 302] Camfield v. United States, 167 U.S. 518, 525 (1897). See also Jourdan v. Barrett, 45 U.S. (4 How.) 169 (1846): United States v. Waddell, 112 U.S. 76 (1884).

[Footnote 303] United States v. McGowan, 302 U.S. 535 (1938).

[Footnote 304] United States v. City of San Francisco, 310 U.S. 16 (1940).

[Footnote 305] Kleppe v. New Mexico, 426 U.S. 529 (1976).

[Footnote 306] California Coastal Comm. v. Granite Rock Co., 480 U.S. 572 (1987).

[Footnote 307] Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson v. Cook, 327 U.S. 474 (1946).

[Footnote 308] Gibson v. Choutau, 80 U.S. (13 Wall.) 92, 99 (1872). See also Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902).

[Footnote 309] Williams v. Lee, 358 U.S. 217 (1959).

[Footnote 310] Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 517 (1839).

[Footnote 311] Oklahoma v. Texas, 258 U.S. 574, 595 (1922).

[Footnote 312] United States v. Oregon, 295 U.S. 1, 28 (1935).

[Footnote 313] Simms v. Simms, 175 U.S. 162, 168 (1899). See also United States v. McMillan, 165 U.S. 504, 510 (1897); El Paso & N.E. Ry. v. Gutierrez, 215 U.S. 87 (1909); First Nat. Bank v. County of Yankton, 101 U.S. 129, 133 (1880).

[Footnote 314] Binns v. United States, 194 U.S. 486, 491 (1904). See also Sere v. Pitot, 10 U.S. (6 Cr.) 332, 336 (1810); Murphy v. Ramsey, 114 U.S. 15, 44 (1885).

[Footnote 315] Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 604 (1897); Simms v. Simms, 175 U.S. 162, 163 (1899); Wagoner v. Evans, 170 U.S. 588, 591 (1898).

[Footnote 316] 24 Stat. 170 (1886).

[Footnote 317] Downes v. Bidwell, 182 U.S. 244, 271 (1901). See also Mormon Church v. United States, 136 U.S. 1, 14 (1890); ICC v. United States ex rel. Humboldt Steamship Co., 224 U.S. 474 (1912).

[Footnote 318] Downes v. Bidwell, 182 U.S. 244 (1901);Dorr v. United States, 195 U.S. 138 (1904); Balzac v. Porto Rico, 258 U.S. 298 (1922) (collectively, the Insular Cases). The guarantees of fundamental rights apply to persons in Puerto Rico, id., 312-313, but what these are and how they are to be determined, in light of Balzac's holding that the right to a civil jury trial was not protected. The vitality of the Insular Cases has been questioned by some Justices, Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion); Torres v. Puerto Rico, 442 U.S. 465, 474 , 475 (1979) (concurring opinion of four Justices), but there is no doubt the Court adheres to it, United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990); Harris v. Rosario, 446 U.S. 651 (1980), and the developing caselaw using the cases as the proper analysis. Applying stateside rights in Puerto Rico are Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) (procedural due process); Examining Board v. Flores de Otero, 426 U.S. 572 (1976) (equal protection principles); Torres v. Puerto Rico, 442 U.S. 465 (1979) (search and seizure); Harris v. Rosario, supra (same); Rodriguez v. Popular Democratic Party, 457 U.S. 1, 7 -8 (1982) (equality of voting rights); Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 331 n. 1 (1986) (First Amendment speech). See also Califano v. Torres, 435 U.S. 1, 4 n. 6 (1978) (right to travel assumed). Puerto Rico is, of course, not the only territory that is the subject of the doctrine of the Insular Cases. E.g., Ocampo v. United States, 234 U.S. 91 (1914) (Philippines and Sixth Amendment jury trial); Hawaii v. Mankichi, 190 U.S. 197 (1903) (grand jury indictment and trial by jury).

[Footnote 319] American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 546 (1828). See also Clinton v. Englebrecht, 13 Wall. (80 U.S.) 434-447 (1872); Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874); Reynolds v. United States, 98 U.S. 145, 154 (1879); The ''City of Panama,'' 101 U.S. 453, 460 (1880); McAllister v. United States, 141 U.S. 174, 180 (1891); United States v. McMillan, 165 U.S. 504, 510 (1897); Romeu v. Todd, 206 U.S. 358, 368 (1907).

[Footnote 320] American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 545 (1828).

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