The federal government owns or controls about 30 percent of the land in the United States. These holdings include national parks, national forests, recreation areas, wildlife refuges, vast tracts of range and wasteland managed by the Bureau of Land Management, reservations held in trust for Native American tribes, military bases, and ordinary federal buildings and installations. Although federal property can be found in every state, the largest concentrations are in the west, where, for example, the federal government owns over 80 percent of the land within Nevada.

The primary constitutional authority for the management and control of this vast real estate empire is the Property Clause. The exact scope of this clause has long been a matter of debate. Broadly speaking, three different theories have been advanced.

The narrowest conception, which can be called the proprietary theory, maintains that the Property Clause simply allows Congress to act as an ordinary owner of land. It can set policy regarding whether such lands will be sold or retained and, if they are retained, who may enter these lands and for what purposes. Under this conception, the clause confers no political sovereignty over federal landholdings. Unless one of the enumerated powers of Article I applies, such as the power to raise armies or establish a post office, political sovereignty over federal lands remains with the several states in which the land is located.

An intermediate conception of the Property Clause can be labeled the protective theory. This conception would go beyond the proprietary theory by allowing the federal government to adopt certain “needful rules and regulations” of a governmental nature in order to protect its interest in property. Under this intermediate conception, for example, the clause would permit Congress to pass federal legislation regulating the sale of federal land, protecting federal land from trespasses and nuisances, or exempting federal land from state taxation. On the other hand, the clause would not permit Congress to exercise general sovereign authority on federal lands. For example, it would not allow Congress to enact a general code of criminal law or family law on federal lands, nor would it permit Congress to exempt persons residing on federal land from general rules of state taxation.

The broadest conception, which can be called the police power theory, regards the clause as conferring not only the powers of ownership but also general sovereign authority to regulate private conduct that occurs on federal land or that affects federal land. In default of any federal rule, state law applies. But if Congress determines that a federal rule “respecting” federal land is “needful,” it may adopt federal legislation that supersedes state law. Thus, the Property Clause gives Congress the authority to adopt any type of legislation for federal lands, including codes of criminal law, family law, and exemptions from state taxation for persons residing on federal lands. The police-power theory would mean that Congress would not even need the Necessary and Proper Clause to pass detailed legislation governing the territory. Nor would other structural constitutional constraints apply, such as the nondelegation doctrine, which ordinarily means that Congress cannot devolve its lawmaking power on the president.

It is not certain which of these three theories corresponds with the original understanding of the Framers, inasmuch as the debates from the Constitutional Convention and the ratification process have little to say about the Property Clause. One clue is provided by the structure of the Constitution. Article I, which sets forth the enumerated powers of Congress, includes a specific grant of power over the governance of federal property. Article I, Section 8, Clause 17, the Enclave Clause, is plainly a grant of sovereign authority—indeed, exclusive sovereign authority—over the District of Columbia and other federal enclaves acquired with the consent of the state in which they are located.

Article I is the place where one would expect to find a grant of power to Congress to exercise political sovereignty over federal lands. Article IV, in contrast, which generally deals with state-to-state relations (full faith and credit, privileges and immunities, extradition, repatriation of slaves, admission of new states, protection of states against invasion), would be an odd place to put such a power. Moreover, it is inconsistent with the careful drafting of the Constitution to assume that the Framers included two overlapping grants of sovereign political authority over federal lands. These structural considerations make it doubtful that the broad police power theory is consistent with the original understanding.

Another important piece of evidence is the Northwest Ordinance, which the Congress under the Articles of Confederation enacted as the Constitutional Convention was meeting, and which the First Congress reenacted after the Constitution was ratified. This statute established the territorial government for the land comprising what is today the states of Ohio, Indiana, Michigan, Illinois, and Wisconsin. James Madison and other leaders at the Convention thought that the Articles of Confederation did not contain an adequate source of power to sustain the Northwest Ordinance. The Property Clause presumably was designed to remedy that defect. This suggests that the Framers intended the Property Clause to be broad enough at least to constitutionalize the provisions of the Northwest Ordinance.

The Northwest Ordinance included a number of provisions respecting the governance of the new territory that would have to be described as pure police power measures. These include clauses preserving the freedom of religion, prohibiting uncompensated takings of property, and outlawing slavery. Other provisions of the ordinance addressed the status of federal land once new states were formed from the territory and admitted to the Union. Such states were prospectively prohibited from interfering with the disposal of lands by the United States or with regulations adopted by Congress to secure title to bona fide purchasers, and they were barred from imposing any tax on federal lands.

Taking the structural and historical evidence together, we can infer what may plausibly have been the original understanding of the Property Clause. The Property Clause authorized Congress to exercise a general police power within the territories before they were formed into states. Once states were admitted to the Union, however, Congress could exercise full police powers over federal land located in a state only in accordance with the Enclave Clause, that is, only when the land was acquired with the consent of the state in question. As to what “needful rules and regulations” Congress could enact respecting federal lands other than enclaves in a state, the Northwest Ordinance suggests that at least some preemptive federal legislation was contemplated, but only if designed to protect the proprietary interests of the United States. In short, the Framers plausibly intended that the police power theory would apply to federal land located in territories, but that the protective theory would apply to non-enclave federal land located in states.

The judicial vision of how much power the Property Clause confers on the federal government has hardly remained constant. To the contrary, it has evolved significantly over time. In the first half of the nineteenth century, the clause was understood to be primarily a source of authority for establishing territorial governments. Once new states were admitted to the Union, the federal government became a mere trustee of any remaining federal lands, holding and protecting them, pending their sale to private persons. Pollard’s Lessee v. Hagan (1845). With the infamous decision of Dred Scott v. Sandford (1857) the Court went further, holding that the Property Clause does not permit the exercise of police powers by the federal government in territory acquired after the founding, and in particular that it does not permit the federal government to prohibit slavery in such territory. Because the Northwest Ordinance had included a similar prohibition, and the Property Clause was designed to constitutionalize the Northwest Ordinance, Dred Scott is contrary to the original understanding in this respect.

By the end of the nineteenth century, the interpretation of the clause shifted decisively toward the protective theory. A leading nineteenth-century exposition of the constitutional authority of the federal government over federal lands, Fort Leavenworth Railroad Co. v. Lowe (1885), is generally consistent with this conclusion. There, Justice Stephen J. Field wrote that the authority of the federal government over territories is “necessarily paramount.” But once a territory is organized as a state and admitted to the Union on equal footing with other states, the state government assumes general sovereignty over federal lands, and the federal government has the rights only of an “individual proprietor.” The federal government can exercise rights of general sovereignty over property only if there has been a formal cession of sovereignty by the state under the Enclave Clause. Justice Field qualified this vision of separated sovereignty, however, by noting that if the federal government acquires land outside the Enclave Clause, any federal forts, buildings, or other installations erected on such land “will be free from any such interference and jurisdiction of the State as would destroy or impair their effective use for the purposes designed.”

Other decisions built on the Fort Leavenworth framework. Thus, the Court held that Congress could prohibit persons from putting up fences on private land if this would block access to public lands, Camfield v. United States (1897); it could protect federal lands by prohibiting fires on neighboring property, United States v. Alford (1927); and it could authorize exterminating state-protected deer to prevent overbrowsing of federal lands, Hunt v. United States (1928). As the Court stated in Camfield:

While we do not undertake to say that Congress has the unlimited power to legislate against nuisances within a State, which it would have within a Territory, we do not think the admission of a Territory as a State deprives it of the power of legislating for the protection of the public lands, though it may thereby involve the exercise of what is ordinarily known as the police power, so long as such power is directed solely to its own protection. A different rule would place the public domain of the United States completely at the mercy of state legislation.

The leading modern decision, Kleppe v. New Mexico (1976), reflects a further evolution in judicial understanding, as it in effect embraces the full-blown police power theory. At issue was the constitutionality of the Wild, Free-Roaming Horses and Burros Act of 1971, which prohibits capturing, killing, or harassing wild horses and burros that range on public lands. Writing for the Court, Justice Thurgood Marshall specifically rejected the contention that the Property Clause includes only “(1) the power to dispose of and make incidental rules regarding the use of federal property; and (2) the power to protect federal property.” He concluded that “Congress exercises the powers both of a proprietor and of a legislature over the public domain.” Thus, without regard to whether wild animals are the property of the United States, or whether the act could be justified as a form of protection of the public lands, Congress was said to have power to legislate with respect to federal lands “without limitations.”

The Kleppe Court made no effort to justify this interpretation of the Property Clause in terms of original understanding. This plenary police power theory is in tension with the reference to “needful” rules and regulations “respecting” the “property belonging to the United States.” This language seems to require some nexus between the exercise of power and the preservation of federal property. And as we have seen, the general police power interpretation probably goes beyond the original understanding of the clause. To date, Congress has generally refrained from drawing upon Kleppe’s expansive notion of federal power under the Property Clause. Consequently, the courts have had little occasion to follow up on Kleppe’s extravagant conception of the powers conferred by the clause.

Another issue that has simmered ever since the decision in Pollard’s Lessee, and occasionally boils over, is whether the Property Clause (and Territories Clause) authorizes the indefinite retention of federal lands. The clauses mention disposal of territory and other property belonging to the United States, and authorizes needful rules and regulations of such property. But it says nothing about retention of such lands. The Enclave Clause, for its part, clearly contemplates indefinite retention of lands, but only for designated purposes and with the consent of the state in which the land is located. From the juxtaposition of these clauses, a number of commentators, especially those frustrated by the federal land bureaucracies in the western states, have argued that if the federal government fails to dispose of lands other than those acquired under the Enclave Clause, it must turn the land over to the states.

There is no clear original understanding about indefinite federal retention of lands outside the Enclave Clause. The issue probably did not occur to anyone at the time of the framing. The lands immediately subject to the Territories and Property Clauses, in the territories just west of the original thirteen colonies, were quickly sold or claimed and very little was retained by the federal government. Only much later, in the arid lands west of the 100th Meridian, did the federal government find that it held vast tracts of land that no one wanted. Whatever the original understanding, established practice has long been that the federal government may “reserve” vast tracts of these lands from disposition or sale. This is the origin of the many Indian reservations and military reservations in the west, not to mention the national parks, national forests, wildlife preserves, and wilderness areas that dot the landscape.

Other than the “sagebrush rebels” who want to throw off the yoke of the federal bureaucracies, general public sentiment has gradually turned against further private disposition of the federal public domain. The Federal Land Policy and Management Act of 1976 now declares it national policy that “the public lands be retained in federal ownership.” The Property Clause is broad enough to support such a policy in any of its three possible interpretations. Only if we read the silence of the Constitution about retention (outside the Enclave Clause) to be an implied prohibition can it be maintained that retention of lands by the federal government is unconstitutional.