Kansas Attorney General Opinion 2013-016

October 24, 2013
ATTORNEY GENERAL OPINION NO. 2013- 16
The Honorable Melanie Meier
Representative, Forty-first District
State Capitol Room 451-S
300 S.W. 10 th Avenue
Topeka, Kansas 66612
Re: 	Constitution of the United States—Article I—Legislative Powers—Powers of
Congress; Jurisdiction on Federal Military Installations
Federal Jurisdiction—Federal Property—Consent Given to United States to
Acquire Land; Limitations; Jurisdiction; Fort Leavenworth Reservation; Fort
Riley Military Reservation; Jurisdiction on Federal Military Installations
Pet 	Animal 	Act—Penalties 	for 	Violations 	of 	Act; 	Inspections 	and
Investigations; Violations of Act or Rules and Regulations; Purpose of Act;
Jurisdiction on Federal Military Installations
Synopsis: 	Kansas ceded its jurisdiction over the federal military installations in Kansas
prior to the enactment of the Kansas Pet Animal Act. Consequently, Kansas
cannot enforce that Act on the federal military installations in Kansas. 	Cited
herein: K.S.A. 27-101; 27-102; 27-104; 27-105; K.S.A. 2013 Supp. 47-1707;
47-1709; 47-1715; 47-1726; U.S. Const., Art. 1, § 8.
* 	* 	*
Dear Representative Meier:
As Representative for the Forty-first District, you ask whether the Kansas Department of
Agriculture, Division of Animal Health (Division), can enforce the Kansas Pet Animal Act
(PAA) 1 on military installations within Kansas. 	Your specific concern is whether the
1 K.S.A. 47-1701 et seq.

The Honorable Melanie Meier
Page 2
Division has jurisdiction to investigate complaints about pet foster homes that are located
on federal military installations within Kansas.
The purpose of the PAA is to "license . . . and regulate the conditions of certain premises
and facilities within the state . . . where animals are maintained, sold or offered or
maintained for sale."2 The PAA authorizes the Animal Health Commissioner to inspect the
premises of persons who have applied for or been granted a license or permit under the
PAA and the premises of persons who may have violated the PAA. 3 A person who
violates any provision of the PAA may be subject to criminal prosecution, a civil fine, or
both. 4 To determine whether the federal military installations are “within the state” for
purposes 	of 	enforcement 	of 	the 	PAA, 	we 	must 	examine 	the 	federal 	government’s
acquisition of the federal military installations in Kansas—McConnell Air Force Base, Fort
Leavenworth, and Fort Riley.
Acquisition of Land by Federal Government
The United States government may acquire land in a state by purchase or cession. 5 When
it purchases land, the federal government acquires jurisdiction pursuant to Article 1, § 8, of
the United States Constitution. 	It provides that “The Congress shall have Power . . . To
exercise exclusive Legislation in all Cases whatsoever, . . . over all Places purchased by
the consent of the Legislature of the State in which the Same shall be, for the Erection of
Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." 	Although the
Constitution refers to the “exclusive legislation” of Congress, it is well settled that the
extent of the federal government's jurisdiction may be qualified in the consent given by a
state.6 Thus, the question of jurisdiction on a federal military installation in Kansas is
dependent upon the consent given by the Kansas Legislature.
Consent by Kansas
Purchase of McConnell Air Force Base
The United States government purchased the land now known as McConnell Air Force
Base through a condemnation proceeding in 1951. 7 At that time, the statutes providing
consent to the purchase of land in Kansas by the federal government and granting
jurisdiction over such purchased land to the federal government stated:
That the consent of the state of Kansas is hereby given, in accordance with
the provisions of paragraph number seventeen, section eight, article one of
the constitution of the United States, to the acquisition by the United States,
by purchase, condemnation or otherwise, of any land in the state of Kansas,
2 K.S.A. 2013 Supp. 47-1726. Emphasis added.
3 K.S.A. 2013 Supp. 47-1709(a)-(c).
4 K.S.A. 2013 Supp. 47-1707; 47-1715.
5 James Stewart & Co. v. Sadrakula, 309 U.S. 94, 99 (1940).
6 309 U.S. at 99.
7 Susan Thompson, Prairie Runways, The History of Wichita's Original Municipal Airport (Air Capital Press,
Kansas Aviation Museum, 2000), p. 105.

The Honorable Melanie Meier
Page 3
which may hereafter be, required for custom houses, courthouses, post
offices, national cemeteries, arsenals, or other public buildings, or for other
purpose of the government of the United States. 8
That exclusive jurisdiction over and within any lands so acquired by the
United States shall be, and the same is hereby, ceded to the United States,
for all purposes; saving, however, to the state of Kansas the right to serve
therein any civil or criminal process issued under the authority of the state, in
action 	on 	account 	of 	rights 	acquired, 	obligations 	incurred 	or 	crimes
committed in said state, but outside the boundaries of such land; and saving
further to said state the right to tax the property and franchises of any
railroad, bridge or other corporations within the boundaries of such lands; but
the jurisdiction hereby ceded shall not continue after the United States shall
cease to own said lands.9
Cession of Fort Leavenworth and Fort Riley
Prior 	to 	Kansas 	becoming 	a 	state 	in 	1861, 	the 	United 	States 	owned 	the 	military
reservations in Kansas and had exclusive jurisdiction over those lands. 10 When statehood
was achieved, the federal government failed to reserve jurisdiction over the military
reservations, 	giving 	Kansas 	jurisdiction 	over 	the 	reservations 	subject 	only 	to 	the
Constitution 	of 	the 	United 	States. 	Thus, 	Kansas 	could 	have 	exercised 	the 	same
jurisdiction over the federal military reservations that it could have exercised over private
landowners. 11 To obtain jurisdiction over the federal military reservations, the federal
government had to obtain a cession of jurisdiction from the State of Kansas. 12
Kansas ceded to the United States the Fort Leavenworth military reservation in 1875 and
the Fort Riley military reservation in 1889. 13 The law ceding jurisdiction of the Fort
Leavenworth military reservation stated:
That exclusive jurisdiction be and the same is hereby ceded to the United
States over and within all the territory owned by the United States, and
included within the limits of the United States military reservation known as
the Fort Leavenworth reservation, in said state, as declared from time to time
by the president of the United States, saving, however, to said state the right
to 	serve 	civil 	or 	criminal 	process 	within 	said 	reservation, 	in 	suits 	or
prosecutions for or on account of rights acquired, obligations incurred or
crimes committed in said state, but outside of said cession and reservation,
8 R.S. 1923, 27-101 (1930 Supp.). A subsequent amendment to this statute continued the consent given in
R.S. 1923, 27-201, but placed limitations on acquisitions exceeding 80 acres. See K.S.A. 27-101(a).
9 R.S. 1923, 27-102 (1930 Supp.). This statute is now codified in K.S.A. 27-102.
10 Benson v. United States, 146 U.S. 325, 329-30 (1902); Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525, 526
(1885); and Hayes v. United States, 367 F.2d 216, 219 (10 th Cir. 1966).
11 Ft. Leavenworth R. Co., 114 U.S. at 527.
12 Id.
13 L. 1875, Ch. 66, § 1; L. 1889, Ch. 150, § 1, respectively.

The Honorable Melanie Meier
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and saving further, to said state, the right to tax railroad, bridge, and other
corporations, their franchises and property, on said reservation.14
The Kansas law for ceding the Fort Riley military reservation to the federal government
contained similar language and also continued state taxing authority over “the property of
citizens, not otherwise exempt, on said reservation.” 15 As a result, the jurisdiction of
Kansas that was reserved in all of the cession laws does not apply to the enforcement of
the PAA in the federal military installations.
Effect of State Laws When Jurisdiction Transfers
Although 	Kansas 	ceded 	jurisdiction 	over 	the 	military 	reservations 	to 	the 	federal
government, the courts have recognized that state laws in existence at the time of cession
that are not inconsistent with federal policy remain in effect until Congress enacts federal
legislation to supersede the state laws. 16 “Since only the law in effect at the time of the
transfer of jurisdiction continues in force, future statutes of the state are not a part of the
body of laws in the ceded area. 	Congressional action is necessary to keep it current.” 17
Thus, state jurisdiction within a military reservation is also dependent upon whether the
state law was enacted before or after cession.
Here, the Kansas Legislature enacted the PAA in 1972. 18 At that time, Kansas had ceded
jurisdiction in the military installations of McConnell Air Force Base, Fort Riley, and Fort
Leavenworth to the federal government. 	The reservation clauses in the cession laws
applied only to service of process and certain taxes. 	We are not aware of any federal
statute 	that 	gives 	Kansas 	the 	authority 	to 	enforce 	the 	PAA 	on 	the 	federal 	military
installations. 	Thus, Kansas lacks jurisdiction to enforce the provisions of the PAA on the
McConnell Air Force Base, the Fort Riley military reservation, and the Fort Leavenworth
military reservation.
You also indicated that pet foster homes are located at the housing quarters on the military
installations; typically, a private person or entity contracts with the federal government to
provide housing on the reservation to military families. 	We assume that you are inquiring
whether the federal government has jurisdiction only over those portions of the military
installation that are actually being used for military purposes. 	This issue has been
addressed by the United States Supreme Court.
In 	Benson 	v. 	United 	States, 	the 	defendant 	argued 	the 	federal 	government 	lacked
jurisdiction to convict him of a murder that occurred in a part of the Ft. Leavenworth military
reservation used for farming. The Court responded:
14 L. 1875, Ch. 66, § 1. This provision is now codified in K.S.A. 27-102 and 27-104.
15 L. 1889, Ch. 150, § 1. This provision is now codified in K.S.A. 27-102 and 27-105.
16 James Stewart & Co., 309 U.S. at 99; Pacific Coast Dairy v. Dep’t of Agriculture of California, 318 U.S.
285, 294 (1943); Craig v. Craig, 143 Kan 624, 631 (1936); and Orlovetz v. Day & Zimmerman, Inc., 18 Kan.
App. 2d 142, 144 (1993).
17 309 U.S. at 100.
18 L. 1972, Ch. 201, § § 1-17; now codified in K.S.A. 47-1701 et seq.

The Honorable Melanie Meier
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The entire tract had been legally reserved for military purposes. 	The
character and purposes of its occupation having been officially and legally
established by that branch of the government which has control over such
matters, it is not open to the courts, on a question of jurisdiction, to inquire
what 	may 	be 	the 	actual 	uses 	to 	which 	any 	portion 	of 	the 	reserve 	is
temporarily put.19
Under Benson, the fact that the federal government leases a part of the military installation
to a private person or entity for the purposes of providing housing does not divest the
federal government of its jurisdiction. 20
Your letter also describes other activities at the military installations that are being
regulated by state or local government agencies. Reviewing those activities will not assist
our analysis. 	Although a state has consented to the exclusive jurisdiction of the federal
government over property situated in the state, the federal government is free to restrict or
extend the powers of the state over activities and persons within the federal reservation. 21
We are aware of no such extension by the federal government of the powers of the State
over activities and persons related to enforcement of the Kansas Pet Animal Act.
Sincerely,
Derek Schmidt
Attorney General
Janet L. Arndt
Assistant Attorney General
DS:AA:JLA:sb
19 146 U.S. at 331; 367 F.2d at 220. See also Hayes v. United States, 367 F.2d 216, 220 (10 th Cir. 1966)
affirming a murder conviction that occurred in the Leavenworth Penitentiary that was not a part of the military
reservation but was within the Ft. Leavenworth military installation.
20 See also Kansas Attorney General Opinions No. 2005-19 and 2009-1 (state taxation of property within Fort
Leavenworth and Fort Riley military reservations, respectively, is dependent upon whether the private
housing corporation owns the property).
21 Evans v. Cornman, 398 U.S. 419, 423-24 (1970) and Offutt Housing Co. v. County of Sarpy, Nebraska,
351 U.S. 253, 260-61 (1956). See also Kansas Attorney General Opinion No. 94-20 addressing legislation
entitling a person who resides in a federal enclave to vote in Kansas and Kansas to tax such resident.