Clause 2

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.


Methods of Disposing of Property

The Constitution is silent as to the methods of disposing of property of the United States. In United States v. Gratiot,303 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.”304 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.305

Public Lands: Federal and State Powers Thereover

No appropriation of public lands may be made for any purpose except by authority of Congress.306 However, Congress was held to have acquiesced in the long-continued practice of withdrawing land from the public domain by Executive Orders.307 In 1976 Congress enacted legislation that established procedures for withdrawals and that explicitly disclaimed continued acquiescence in any implicit executive withdrawal authority.308 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,309 to declare the dignity and effect of titles emanating from the United States,310 to determine the validity of grants which antedate the government’s acquisition of the property,311 to exempt lands acquired under the homestead laws from previously contracted debts,312 to withdraw land from settlement and to prohibit grazing thereon,313 to prevent unlawful occupation of public property and to declare what are nuisances, as affecting such property, and provide for their abatement,314 and to prohibit the introduction of liquor on lands purchased and used for an Indian colony.315 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.316

Unanimously upholding a federal law to protect wild-roaming horses and burros on federal lands, the Court restated the applicable principles governing Congress’s 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.317 Absent action by Congress, however, states may in some instances exercise some jurisdiction over activities on federal lands.318

No state may tax public lands of the United States within its borders,319 nor may state legislation interfere with the power of Congress under this clause or embarrass its exercise.320 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.321 The question whether title to land that 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 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.”322 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.323 But a state statute enacted subsequently to a federal grant cannot operate to vest in the state rights that either remained in the United States or passed to its grantee.324

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.325 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,326 which will then be invested with all legislative power except as limited by the Constitution of the United States and acts of Congress.327 In 1886, Congress prohibited the enactment by territorial legislatures of local or special laws on enumerated subjects.328 The constitutional guarantees of private rights are applicable in territories which have been made a part of the United States by congressional action329 but not in unincorporated territories.330 Congress 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.331 Such courts may exercise admiralty jurisdiction despite the fact that such jurisdiction may be exercised in the states only by constitutional courts.332


39 U.S. (14 Pet.) 526 (1840). back
39 U.S. at 533, 538. back
Ashwander v. TVA, 297 U.S. 288, 335–40 (1936). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938). back
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). back
Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Midwest Oil Co., 236 U.S. 459, 469 (1915). back
Federal Land Policy and Management Act, Pub. L. 94–579, § 704(a); 90 Stat. 2792 (1976). back
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). back
Bagnell v. Broderick, 38 U.S. (13 Pet.) 436, 450 (1839). See also Field v. Seabury, 60 U.S. (19 How.) 323, 332 (1857). back
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). back
Ruddy v. Rossi, 248 U.S. 104 (1918). back
Light v. United States, 220 U.S. 523 (1911). See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77 (1873). back
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). back
United States v. McGowan, 302 U.S. 535 (1938). back
United States v. City of San Francisco, 310 U.S. 16 (1940). back
Kleppe v. New Mexico, 426 U.S. 529 (1976). back
California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987). back
Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson v. Cook, 327 U.S. 474 (1946). back
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). back
Williams v. Lee, 358 U.S. 217 (1959). back
Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 517 (1839). back
Oklahoma v. Texas, 258 U.S. 574, 595 (1922). back
United States v. Oregon, 295 U.S. 1, 28 (1935). back
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’l Bank v. County of Yankton, 101 U.S. 129, 133 (1880). back
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). back
Walker v. New Mexico & So. Pac. R.R., 165 U.S. 593, 604 (1897); Simms v. Simms, 175 U.S. 162, 163 (1899); Wagoner v. Evans, 170 U.S. 588, 591 (1898). back
24 Stat. 170 (1886). back
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). back
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. at 312–13, 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 that the Court adheres to it (United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990); Harris v. Rosario, 446 U.S. 651 (1980)). Applying stateside rights in Puerto Rico are Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) (procedural due process); Examining Bd. 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 Associates v. Tourism Co. of Puerto Rico, 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). back
American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546 (1828). See also Clinton v. Englebrecht, 80 U.S. (13 Wall.) 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). back
American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 545 (1828). back