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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Lonnie Ray Swartz, 

Defendant. 

No. CR-15-01723-001-TUC-RCC (DTF)

ORDER 

 Currently pending before the Court is Defendant’s Motion to Dismiss for Lack of 

Subject Matter Jurisdiction (Doc. 29). The Court has reviewed the same, together with 

the Government’s response opposition in thereto (Doc. 36), the Defendant’s reply (Doc. 

39), the Government’s sur-reply (Doc. 54), the Defendant’s supplemental brief (Doc. 60) 

and the Government’s response to Defendant’s supplemental brief (Doc. 79). An 

evidentiary hearing on this motion was held before this Court on October 17, 2016. 

On September 23, 2016 a federal grand jury in Tucson, Arizona returned an 

indictment charging the Defendant with second degree murder in violation of 18 U.S.C. § 

1111(a) & (b). Doc. 1, Ex. A. 18 U.S.C. § 1111(b) clarifies that the statute will apply 

“within the special maritime and territorial jurisdiction of the United States.” The 

“Special maritime and territorial jurisdiction of the United States” includes: 

 

Any lands reserved or acquired for the use of the United States, and under 

the exclusive or concurrent jurisdiction thereof, or any place purchased or 

otherwise acquired by the United States by consent of the legislature of the 

State in which the same shall be, for the erection of a fort, magazine, 
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arsenal, dockyard, or other needful building. 

18 U.S.C. § 7(3). 

 By and through his Fed.R.Crim.P. 12(b)(2) motion, Defendant Lonnie Ray Swartz 

has moved to dismiss the second degree murder charge brought against him, arguing 

“there is no indication that the alleged crime was committed on federal land.” Doc. 29 at 

2. The dispositive question, then, is whether, as a matter of law, 18 U.S.C. § 7(3) confers 

federal jurisdiction over the geographic area where offense is alleged to have occurred. If 

this Court determines that it does, the Court shall have subject matter jurisdiction over 

this case and the Defendant’s motion must be denied. 

BACKGROUND 

 The Government represents that it expects to prove, at trial, “that defendant fired 

the shots which resulted in the death of the victim while the defendant was within lands 

referred to as the ‘Roosevelt Reservation’... [which] was reserved or acquired for use of 

the United States first in 1897, and then in 1907, and is within the special maritime and 

territorial jurisdiction of the United States.” Doc. 36 at 2. 

 The reservation to which the Government refers, see id., is the 60-foot strip of land 

on the United States side of the international border between the United States and 

Mexico, running the length of California to New Mexico, that President Roosevelt, in 

1907, “reserved from entry, settlement, or other form of appropriation under public land 

laws and set apart as a public reservation.” Id. (citing Proclamation of May 27, 1907, 35 

Stat. 2136-37 (1907-1909) at Doc. 79, Ex. B). 

LEGAL STANDARD 

 “Federal courts are courts of limited jurisdiction ... they possess only that power 

authorized by Constitution and statute.” U.S. v. Marks, 530 F.3d 799, 810 (9th 

Cir.2008)(internal citations omitted). The burden of establishing federal jurisdiction is on 

the party invoking federal jurisdiction. Id. Accordingly, in the instant matter, the burden 

rests on the Government as the party that filed the Indictment in federal court. See, Doc. 

1. 
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DISCUSSION 

 With respect to this “Roosevelt Reservation,” it is apparent there is little the 

parties agree to. 

 The Government contends jurisdiction in federal court is appropriate because, 

Roosevelt’s 1907 Proclamation “reserved the land at issue for use of the United States” 

and, as the Ninth Circuit has clarified, “there is no requirement that the United States be 

an owner, or even occupant, so long as the land has been set aside for the use of an 

instrumentality of the federal government.” Doc. 36 at 4 (citing United States v. Corey, 

232 F.3d 1166, 1176-1183 (9th Cir. 2000)(emphasis added). With respect to the effect of 

Arizona’s entry into the Union, the Government points to Arizona case law in support of 

its contention that the federal government and the state of Arizona exercise concurrent 

jurisdiction over the land, see Doc. 54 at 2, citing State of Arizona v. Galvan-Cardenas, 

165Ariz. 399, 404 (Ct. App. Div. II 1990), and observes that Arizona has, since it 

achieved statehood, disclaimed all right and title to “unappropriated and ungranted lands 

within its boundaries,” which would include those comprising the Roosevelt Reservation, 

see Doc. 54 at 2-4 (citing, e.g., Arizona’s Enabling Act, A.R.S. Enab. Act, Sec. 20). 

Such concurrent jurisdiction, is, as the Ninth Circuit has explained, concurrent legislative

jurisdiction, but, for purposes of interpreting the application of 18 U.S. C. §7(3) with 

respect to any geographic area, a court shall be satisfied that an area of land will qualify 

thereunder where “the United States enjoys such control over the area that the law should 

constructively regard it as a Untied States territory...[and] United States territorial 

jurisdiction [over the land] need not be exclusive.” Doc. 4-5 (citing Corey, 232 F.3d at 

1177-1178). 

 Though the Defendant does not dispute the existence of Roosevelt’s 1907 

Proclamation, he contends: (1) it did not create binding legal authority (Doc. 60 at 2-5); 

(2) even if it did, it did not confer Federal criminal jurisdiction over offenses committed 

thereon because, by its own terms, the reservation was created for a different purpose 

(Doc. 39 at 2-7); (3) regardless of its purpose, the government has not shown the “so-
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called ‘Roosevelt Reservation’” survived Arizona’s admission to the Union in 1912 and 

is still respected as a federal land reservation (Doc. 39 at 2); (4) Congress affected the 

demise of the Roosevelt Proclamation when it passed the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 and the Secure Fence Act of 2006, because both 

pieces of legislation “mandated the installation of numerous items at the border” that 

violated the Proclamations’ express prohibition against the installation of such items 

(Doc. 60 at 6-8); and (5) the United States has otherwise abandoned the Proclamation as 

evidenced by the erection of structures on the land in direct contravention of the 

Proclamation’s terms and at least two grants of land extended to private owners by way 

of land patents (Doc. 60 at 8-14). 

 This Court is not convinced by Defendant’s arguments, and is satisfied the 

Government has bet its burden of establishing subject-matter jurisdiction with respect to 

the charged offense. 

 First, the Court rejects Defendant’s supplemental argument that the Executive 

Orders and Proclamations, such as those creating the McKinley and Roosevelt 

Reservations, do not create binding legal authority. None of the case law Defendant cites 

belies well-established Supreme Court, Ninth Circuit, and statutory precedent 

acknowledging the President’s power to promulgate Executive Orders reserving lands 

from sale and [other] public use. See, e.g. Grisar v. McDowell, 73 U.S. 363, 381 (1867); 

United States v. Midwest Oil Co., et. al. 35 S.Ct. 309 (1915); United States v. Alaska, 423 

F.2d 764 (9th Cir. 1970); The Pre-emption Act of 1830, 21 Cong. Ch. 208, May 29, 1830, 

4 Stat. 420 at Section 4. 

 Second, it is not open to courts, on a question of jurisdiction, to inquire what 

actual use any portion of any federally reserved land is put. See Benson v. United States, 

13 S.Ct. 60, 62 (1892). It is enough, for purposes of the instant examination, that the 

character and purpose of the land in question was legally and officially established, by 

virtue of the McKinley and Roosevelt Proclamations for the use and control by the 

federal government in connection with matters relating the “smuggling of goods” (which 
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implicates the enforcement of federal criminal and civil statutes) and, as the Government 

points out, matters relating to public safety. See Doc. 54 at 5. Furthermore, the Court is 

not convinced that the character and purpose of the land has, subsequently, been 

compromised either by patent of land or by any act of Congress. As to the former, the 

Government has shown that the patents of land the Defendant has cited do not extend into 

the Roosevelt Reservation and that, even if they did, said patents would be absolutely 

void as a matter of law. See Doc. 79 at 6-10; Proctor v. Painter, et. al., 15 F.2d 974, 975 

(9th Cir. 1926). As to the latter, to hold that the cited acts of Congress somehow convey 

exclusive jurisdiction over crimes committed on the Roosevelt Reservation to the State of 

Arizona flies in the face of Benson, asks this Court to limit, or at least partially strip, the 

United States of its authority on and within the property it owns, uses and has control 

over, and requires this Court to turn a blind eye to what was consented to, disclaimed, 

ceded, and done in the past by both the State of Arizona and the federal government. 

This, the Court will not do. 

 Third, and based upon the evidence noted in this section, the Court is satisfied that 

the Government has shown that geographic area at issue maintained its status as federal 

reservation despite Arizona’s entry into the Union in 1912. Moreover, the Supreme 

Court has recognized that lands may be reserved or acquired for the use of the United 

States without the consent of the state’s legislature if the federal government reserved or 

acquired the land before statehood. See Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 

526–527, 531–32 (1885)(emphasis added). Accordingly, even if Arizona had not, in its 

enabling act, disclaimed all right and title to the lands at issue in this motion, this Court 

would be still be satisfied that the Roosevelt Reservation maintained its character after 

Arizona was admitted as a state of the Union in 1912. 

 Finally, the Court observes that subsection 7(3) can only apply where the foreign 

sovereign does not object to the exercise of such jurisdiction, see Corey, 232 F.3d at 

1171, and that the State of Arizona has not protested this Court’s assertion of jurisdiction 

over this matter. In the United States, the Constitution permits the state and federal 
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governments to exercise concurrent jurisdiction without undue interference. Id. at 1180. 

“What matters is not whose law trumps in particular situations, but that there is a lawdriven means for resolving any conflict.” Id. 

 In sum, the Government has shown, to this Court’s satisfaction, that the lands 

comprising the Roosevelt Reservation, fall within the purview of 18 U.S.C. §7(3) such 

that this Court has subject-matter jurisdiction over the criminal charges brought in this 

case. Accordingly, 

IT IS ORDERED Defendant’s motion to Dismiss (Doc. 29) is DENIED. 

 Dated this 24th day of March, 2017.