Big Hole National Battlefield Administrative History

Chapter Six:
Concurrent Jurisdiction

In 1933 the park service assumed exclusive jurisdiction over Big Hole Battlefield National Monument. Public Law 88-24, May 17, 1963, not only extended the boundaries of the Big Hole Battlefield but also recommended concurrent jurisdiction over petty offenders with the state of Montana, pursuant to state approval. Under the terms of exclusive jurisdiction, the federal government possesses all of the police authority of the state and the state concerned has not reserved the right to exercise authority concurrently with the United States. In 1956, an Interdepartmental Committee for The Study of Jurisdiction over Federal Areas Within the States recommended that exclusive federal jurisdiction be obtained, or retained, "only where it is absolutely necessary to the Federal Government, and in such instances the United States should provide a statutory or regulatory code to govern the areas." The committee further established that proprietary jurisdiction – "wherein the Federal Government not receive, or retain, any measure whatever of legislative jurisdiction, but that it hold the installations and areas in a proprietorial interest status only" – was the desirable status for a large majority of federally owned land. Exceptions included only areas of immense size, large populations, remote locations, or peculiar use. In these instances concurrent jurisdiction – wherein the States reserved the right to exercise authority concurrently with the United States – was preferred. Remote Big Hole Battlefield fell within this category. [11]

As late as 1976, the state legislature had not passed legislation accepting the 1963 retrocession. Correspondence suggests that the delay resulted from inaction rather than from disagreement over the conditions or the fact of the transfer. In fact, Al Schulmeyer presented concurrent jurisdiction as a means of increasing support for the park service within the "strong[ly] conservative Republican [Big Hole] area." The Beaverhead National Forest and the Bureau of Land Management, Schulmeyer noted, had been recently (and roundly) criticized for " 'tyrannical actions by federal agencies without considering local feelings.'. . . I do not want the NPS and the Battlefield to fall into the same group without an effort to avoid it." [12]

Concurrent jurisdiction would cost the county no additional money, as park service rangers would continue to assume all responsibilities for police patrol. It would also place state and county laws on a par with federal laws, thereby "increas[ing] local control and participation [at] no increased cost." State representative Terry Murphy agreed to introduce legislation in approval of concurrent jurisdiction. Schulmeyer also urged that Yellowstone and Rocky Mountain Region officials actively involve State Senator Frank Hazelbaker, "MR. REPUBLICAN," in the legislative process, thereby sharing ownership for the proposal and for the anticipated positive local response. To do otherwise risked further alienating both Hazelbaker and the local community. While Schulmeyer was confident that concurrent jurisdiction would pass despite local opposition from the surrounding area he had no desire to create another source of animosity or to waste an opportunity to cultivate good will. The Montana legislature approved concurrent jurisdiction in 1980. By April 1982 all necessary documents had been filed with the county clerk, county sheriff, Federal Bureau of Investigation, and the U.S. Attorney's office. [13]