concurring in the judgment.
I concur in the judgment of the lead opinion and write separately because my analysis differs in some respects and because I believe we are obligated to respond to additional arguments made by Gabrion that the lead opinion does not address. The questions whether the federal government has jurisdiction to prosecute Marvin Gabrion (“Gabrion”) and whether the U.S. District Court for the Western District of Michigan has jurisdiction over the trial are exceedingly complex ones. I believe that, although this case involves particularly thorny issues of Constitutional and statutory interpretation, a careful review of precedent yields the clear conclusion that 16 U.S.C. § 480 does not preclude Congress from accepting concurrent legislative jurisdiction over the national forests. Where such concurrent legislative jurisdiction exists, the federal courts have subject-matter jurisdiction over federal prosecutions pursuant to 18 U.S.C. § 1111 for murders that take place in these forests. My reasoning accords with a recent Tenth Circuit opinion upholding federal criminal jurisdiction over the prosecution of a defendant under § 1111 for committing first-degree murder in the Ouachita National Forest in Oklahoma.1 United States v. Fields, 516 F.3d 923, 2008 WL 483281, at *2-*9 (10th Cir. Feb.25, 2008).
I. DOES 16 U.S.C. § 480 ALLOW THE FEDERAL GOVERNMENT TO EXERCISE CONCURRENT JURISDICTION OVER NATIONAL FOREST LANDS?
This case requires us to delineate the extent of Congress’s Constitutional powers *858under the Property, Federal Enclave, and Interstate Commerce Clauses as well as Congress’s intent in enacting § 480. I have reached the conclusion that under these three clauses of the Constitution Congress has broad authority to legislate with respect to the national forests. The provision of the Weeks Act specifically addressing jurisdiction over the national forests, § 480, provides for the exercise of concurrent federal and state legislative jurisdiction over national forests, where the federal government accepts such jurisdiction. Because § 480 allows for concurrent legislative jurisdiction by the federal government, it also allows for the exercise of subject-matter jurisdiction by the federal courts when Congress creates a cause of action. Congress has created a cause of action via'18 U.S.C. § 1111, which allows for federal prosecution of murder in the special territorial and maritime jurisdiction of the United States, and via 18 U.S.C. § 7, which defines that jurisdiction. In turn, 18 U.S.C. § 3231 vests original jurisdiction in the federal district courts “of all offenses against the laws of the United States,” including violations of § 1111.
A. Constitutional Authority to Exercise Legislative Jurisdiction
Congress derives legislative authority to criminalize acts perpetrated in national forests from the Federal Enclave Clause, Art. I, § 8, cl. 17; the Property Clause, Art. IV, § 3, cl. 2; and the Interstate Commerce Clause, Art. I, § 8, cl. 3. Both the dissent and lead opinion reference only the Property and Federal Enclave Clauses. At least one district court, however, has upheld § 480 as a valid exercise of Congressional authority under the Interstate Commerce Clause. United States v. Griffin, 58 F.2d 674, 675 (W-D.Va.1932) (holding that the Weeks Act is a valid exercise of Congress’s authority to regulate interstate commerce because its purpose is to increase the navigability of streams by protecting their watersheds). Just as the creation of the national forests represented an exercise of Congress’s powers under the Interstate Commerce Clause, so too would administering and protecting that land and its inhabitants via criminal law. In addition, the Federal Enclave Clause gives Congress legislative jurisdiction over lands ceded to it. In Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 528, 58 S.Ct. 1009, 82 L.Ed. 1502 (1938), the Supreme Court held that “[t]he States of the Union and the National Government may make mutually satisfactory arrangements as to jurisdiction of territory within their borders.... ” The Court held that in two important respects the Federal Enclave Clause should not be construed narrowly. First, the federal government may acquire qualified as well as exclusive jurisdiction over land and, second, the government may do so for purposes beyond those specified in the language of the Enclave Clause.2 Id. at 528-29, 58 S.Ct. 1009. Under Wilson v. Cook, 327 U.S. 474, 486, 66 S.Ct. 663, 90 L.Ed. 793 (1946), to determine the extent of federal jurisdiction over a territory, we must look at the state statute authorizing the sale as well as the federal statute authorizing acquisition. In this case, § 480 authorizes federal acquisition, and Mich. Comp. Laws §§ 3.401-3.402 constitute the state provisions authorizing the cession of state lands.
*859The Supreme Court, however, has also held that regardless of the degree of jurisdiction ceded by a state, the Property Clause gives Congress the power to enact legislation over federal land. Kleppe v. New Mexico, 426 U.S. 529, 542-43, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976). I think that this statement in Kleppe, as well as the cases interpreting the Enclave Clause, yield the following interpretation. State cession statutes determine the amount of jurisdiction that the state retains. Irrespective of this agreement, however, Congress has a broad power to enact legislation related to federal land. The Supreme Court in Kleppe determined that “Congress exercises the powers both of a proprietor and of a legislature over the public domain.” Id. at 540, 96 S.Ct. 2285. The Court rejected the “traditional” view “that the United States’ powers on most of the public lands are the limited powers of a proprietor, or property owner, not a sovereign.” Charles F. Wilkinson, The Field of Public Land Law: Some Connecting Threads and Future Directions, 1 Pub. Land L.Rev. 1, 7 (1980). “Kleppe thus complete[d] the long evolution from the traditional model, which would relegate all exercises of police power to [Federal Enclave] Clause lands only, to a broad federal preemptive authority under the Property Clause.” Id. at 11. I therefore disagree with the lead opinion that this case presents a significantly clearer case of Congressional authority under the Federal Enclave Clause than under the Property Clause. The only question regarding Congressional authority under the Property Clause, then, is whether §§ 1111 and 7(3) constitute a “needful” rule “respecting” federal public land including the national forests. Art. IV, § 3, cl. 2. Kleppe stands for the proposition that Congress has broad authority under the Property Clause to enact criminal legislation regarding rational forests, even if that legislation protects not only the lands but also the people within them.3
B. Legislative Jurisdiction Under 16 U.S.C. § 480
Of course, even if Congress has Constitutional authority to exercise legislative jurisdiction, it may limit its own jurisdiction and that of the courts via specific statutes. Therefore, having determined that three clauses of the Constitution give Congress legislative jurisdiction regarding public lands, I next turn to the question of whether Congress has chosen to exercise that authority via § 480. Precedent strongly suggests that § 480 provides for concurrent federal and state legislative jurisdiction over national forests. The Supreme Court has held that by enacting § 480 “Congress in effect has declined to accept exclusive legislative jurisdiction over forest reserve lands, and expressly provided that the state shall not lose its jurisdiction in this respect....” Wilson, 327 U.S. at 487, 66 S.Ct. 663. The Court reiterated this axiom in 1977: “[T]he States retain civil and criminal jurisdiction over the national forests notwithstanding the fact that the *860national forests are owned by the Federal Government.” United States v. County of Fresno, 429 U.S. 452, 455, 97 S.Ct. 699, 50 L.Ed.2d 683 (1977). These statements are best interpreted not as a suggestion' that the states retain exclusive legislative jurisdiction under § 480, but rather that the states retain concurrent jurisdiction with Congress.4
The Fourth and Ninth Circuits have upheld concurrent federal legislative jurisdiction over the national forests as well as federal courts’ subject-matter jurisdiction over civil and criminal matters relating to the national forests. In United States v. California, 655 F.2d 914, 916 (9th Cir.1980), the Ninth Circuit considered an action by the United States to recover fire-suppression costs related to a fire negligently started by state employees in a national forest. The Ninth Circuit found that a federal district court had subject-matter jurisdiction pursuant to 28 U.S.C. § 1345, which vests the federal district courts with original jurisdiction of suits brought by the federal government. Id. at 916. The Ninth Circuit proceeded to apply state law in the absence of federal law on the subject of a tort recovery for fire suppression costs. Id. at 916-20. In the course of its opinion, the Ninth Circuit stated that 16 U.S.C. § 480 provides for concurrent state and federal legislative jurisdiction over national forests. Id. at 919. Thus, the Ninth Circuit determined in California that the federal government had concurrent jurisdiction over national forests pursuant to 16 U.S.C. § 480 and that the district possessed subject-matter jurisdiction pursuant to 28 U.S.C. § 1345. In the instant case, the federal government once again possesses concurrent jurisdiction over Manistee National Forest and the district court possessed subject-matter jurisdiction pursuant to 18 U.S.C. §§ 1111(b), 7(3), and 3231.5
In the 1996 case of United States v. Raffield, 82 F.3d 611 (4th Cir.), cert. denied, 519 U.S. 933, 117 S.Ct. 306, 136 L.Ed.2d 223 (1996), the Fourth Circuit held that the federal and state governments had concurrent legislative jurisdiction over the national forests. The Fourth Circuit explained that 16 U.S.C. § 480 “means only that the mere establishment of the forest does not alter the jurisdictional status of the land,” and that § 480 “does not in any way preclude state and federal governments from entering into a relationship of concurrent jurisdiction.” Id. at 613. The Fourth Circuit further explained that a North Carolina state cession statute, similar to Mich. Comp. Laws § 3.401, indicated state consent to concurrent jurisdiction and that 16 U.S.C. § 551 indicated federal acceptance of jurisdiction over all national forest lands. Id. at 612. Accordingly, a federal district court had subject-matter jurisdiction over a prosecution for Jeromy Raffield’s drunk driving and refusal to submit to a breath analysis in viola*861tion of the Assimilative Crimes Act, 18 U.S.C. § 13. While the Fourth Circuit held that 16 U.S.C. § 551 indicated Congress’s broad acceptance of federal jurisdiction over all national forest lands, we need not rely on similar reasoning here. Section 551 functioned in the opinion only as the indicator of federal acceptance of jurisdiction. As I explain infra, acceptance of federal jurisdiction over lands the federal government purchased prior to 1940 is presumed in the absence of evidence of contrary federal intent. Because no such evidence of contrary intent exists with respect to the government’s exercise of jurisdiction over the Oxford Lake parcel, we must conclude that the federal government accepted jurisdiction over the parcel. Therefore, with respect to the land at issue in this case, we do not need to rely on any other statute such as § 551 to indicate the federal government’s acceptance of jurisdiction.6
The decisions in Raffield and California buttress an interpretation of § 480 as providing that the states retain jurisdiction over persons within national forests “except so far as the punishment of offenses against the United States.” 16 U.S.C. § 480. I think the correct interpretation of the “except clause” is that it creates concurrent federal jurisdiction for the punishment of offenses against the laws of the United States, including laws of both general and specific geographic applicability. In United States v. Gibson, 881 F.2d 318 (6th Cir.1989), we stated: “It has long been established that the words ‘offense against the United States’ encompass all offenses against the laws of the United States, not just offenses directed at the United States as target or victim.” Id. at 321. Although Gibson interpreted the phrase “offense against the United States” as used in the federal fraud statute, 18 U.S.C. § 371, there is no reason to believe that the phrase has a different meaning in the context of 16 U.S.C. § 480. Because Gibson is binding precedent, I think that we must hold that “offenses against the United States” means offenses against the laws of the United States. Furthermore, there exists no precedent suggesting that we should limit that category, as Gabrion as well as the dissent argue, to only those laws that “are federal regardless of where the crime is committed.” Dissent at 879.
Restricting the meaning of “offense against the United States” under § 480 to only federal laws of general geographic applicability would render the key clause “except so far as the punishment of offenses against the United States” meaningless. The federal government always has jurisdiction over offenses of general geographic applicability. The dissent’s narrow interpretation of the “except clause” to merely reassert that obvious *862proposition renders the clause superfluous and insignificant. “ ‘[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ” Duncan v. Walker, 533 U.S. 167, 174,121 S.Ct. 2120,150 L.Ed.2d 251 (2001) (quoting Market Co. v. Hoffman, 101 U.S. 112, 115, 25 L.Ed. 782 (1879)). Therefore, I think that § 480 gives Congress concurrent legislative jurisdiction regarding federal offenses of specific as well as general geographic applicability.
Indeed, a Seventh Circuit case suggests that the phrase “offenses against the United States” includes federal laws limited geographically in their application to the special maritime and territorial jurisdiction of the United States. In United States v. Gill, 204 F.2d 740 (7th Cir.1953), the Seventh Circuit upheld a conviction under 18 U.S.C. § 113(b) for an assault with intent to commit sodomy that took place on a federally registered vessel journeying across Lake Michigan from Chicago, Illinois to Michigan City, Indiana. The defendant had argued that because Congress had not defined and criminalized sodomy, it could not be a felony under § 113(b). Id. at 741-42. The Seventh Circuit, however, rejected this argument and held that because Indiana criminalized sodomy, under the Assimilative Crimes Statute and § 7(3) the assault with intent to commit sodomy was a crime against the United States. Id. at 742-43. Thus, Gill stands for the proposition that a statute federalizing a state crime in areas of federal jurisdiction (in that case 18 U.S.C. § 13) makes this crime one committed “against the United States.” Id. at 743.
Title 18 U.S.C. § 1111 is comparable to the Assimilative Crimes Act in that it provides for the federal government’s prose-cutorial jurisdiction over a crime (murder) ordinarily within the jurisdiction of the states, so long as the crime takes place in an area of federal jurisdiction. My interpretation does not lead to the conclusion that the federal government would have exclusive jurisdiction of state-law causes of action within national forests. The “except clause” of 16 U.S.C. § 480 creates concurrent federal jurisdiction where the pre-existing legal regime prior to cession was exclusive state jurisdiction (apart from federal crimes enacted pursuant to the Interstate Commerce Clause); the “except clause” does not create an exception to concurrent federal and state jurisdiction. Therefore, my argument yields the conclusion that if a murder takes place in a national forest where the federal government has accepted concurrent jurisdiction, both the state and federal governments have jurisdiction to prosecute that murder.
The dissent argues that my interpretation would give federal courts jurisdiction over all state crimes federalized in 18 U.S.C. § 13 (the Assimilative Crimes Act) that take place in national forests and that this is an unprecedented expansion of federal jurisdiction. Dissent at 885. While the first part of this claim is true, the latter is not. At least two courts of appeals decisions including one in the Sixth Circuit have found federal jurisdiction for violations of § 13 that took place in national forests. See, e.g., United States v. Terry, 86 F.3d 353, 354 (4th Cir.1996), cert. denied, 524 U.S. 940, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998); United States v. Couch, 65 F.3d 542, 543 (6th Cir.1995).
We next need to consider whether any statutes other than the Weeks Act limit federal legislative jurisdiction over the national forests. Under a traditional interpretation of the Federal Enclave Clause, we must look to the state statute authorizing cession to determine the degree of federal jurisdiction. Wilson, 327 U.S. at 486, 66 S.Ct. 663. I do not believe, howev*863er, that we may still hold after the Supreme Court’s decision in Kleppe that a state statute can limit federal legislative jurisdiction over lands that the national government owns. Kleppe reiterated “that ‘[t]he power over the public land thus entrusted to Congress is without limitations.’” 426 U.S. at 539, 96 S.Ct. 2285. Kleppe reasoned that the terms of a state cession statute govern the extent of the state’s retention of jurisdiction and not the terms of federal legislative jurisdiction. Id. at 541-43, 96 S.Ct. 2285. Therefore, we could simply hold that Congress has authority pursuant to the Property Clause to enact 18 U.S.C. § 1111, and that 16 U.S.C. § 480 does not preclude the application of § 1111 in national forests.
Even if one believed erroneously that Kleppe's expansive reading of the Property Clause did not replace the older method of determining the extent of federal jurisdiction under the Federal Enclave Clause, however, we must conclude that Congress has criminal jurisdiction over persons within the Manistee National Forest. Michigan consented to the acquisition by the United States of lands “needed for the establishment ... of national forests in the state: Provided, That the state of Michigan shall retain a concurrent jurisdiction with the United States in and over lands so acquired” with respect to the execution of civil and criminal process. Mich. Comp. Laws § 3.401. Section two of the relevant Michigan code authorized “the United States to pass such laws and to make or provide for the making of such rules and regulations, of both a civil and criminal nature, and provide punishment therefor, as in its judgment may be necessary for the administration, control, and protection of such lands_” Mich. Comp. Laws § 3.402. Thus, Michigan authorized federal jurisdiction of offenses in violation of laws such as 18 U.S.C. § 1111, which apply in the special territorial and maritime jurisdiction of the United States, when the federal government deems enforcement necessary for the administration and control of the national forest lands.
C. Subject-Matter Jurisdiction
The dissent correctly identifies the need to clarify the relationship between legislative and subject-matter jurisdiction. Dissent at 882-84. Legislative jurisdiction refers to “[t]he sphere of authority of a legislative body to enact laws and to conduct all business incidental to its law-making function.” Blaoks’ Law DictionaRY 900 (6th ed.1990). Subject-matter jurisdiction “refers to [a] court’s power to hear and determine cases of the general class or category to which [the] proceedings in question belong.” Id. at 1425.
The question of whether Congress has legislative jurisdiction over national forests or whether Congress merely possesses proprietorial ownership over the forests is intimately connected in this case with the question whether the federal courts have criminal jurisdiction over first-degree murder in a national forest. The dissent incorrectly interprets my opinion as suggesting that the Constitution, in a self-executing manner, directly confers subject-matter jurisdiction in the federal courts over murders in national forests. Dissent at 882-83. My argument instead develops along the following logical chain: Congress possesses Constitutional authority to exercise legislative jurisdiction; 16 U.S.C. § 480 allows for this exercise; there exists an unrebutted presumption that Congress accepted legislative jurisdiction over the Oxford Lake parcel purchased in July 1939 and that, consequently, the parcel lies within the territorial jurisdiction of the United States; Congress has created a cause of action respecting first-degree murder in the territorial jurisdiction of the United States; and Congress has given *864the federal district courts jurisdiction over this and other criminal causes of action.
I have made clear why I believe that 16 U.S.C. § 480 provides for concurrent legislative jurisdiction by the federal government over offenses against the United States of both national and limited geographic applicability. Congress has created a cause of action via 18 U.S.C. § 1111(b), which allows for federal prosecution of murder in the special territorial and maritime jurisdiction of the United States, and via 18 U.S.C. § 7(3), which defines that jurisdiction. As I explain infra, the Oxford Lake parcel at issue lies within the territorial jurisdiction of the United States as defined by § 7(3). And here is where the relationship between legislative and subject-matter jurisdiction becomes clear. A violation of § 1111 in a national forest, where that forest falls within the scope of § 7(3), is an offense against the laws of the United States, as I have explained supra. In turn, 18 U.S.C. § 3231 vests original jurisdiction in the federal district courts “of all offenses against the laws of the United States.” I therefore believe that so long as the Oxford Lake parcel lies within the territorial jurisdiction of the United States, pursuant to § 7(3), then the United States District Court for the Western District of Michigan correctly found that it had subject-matter jurisdiction over Gabrion’s prosecution.
II. IS THE SOUTHERN THIRD OF OXFORD LAKE WHERE GA-BRION ALLEGEDLY MURDERED TIMMERMAN, WITHIN THE SPECIAL TERRITORIAL AND MARITIME JURISDICTION OF THE UNITED STATES AS DEFINED IN 18 U.S.C. § 7(3)?
In its June 2001 opinion, the district court found that the southern portion of Oxford Lake where Gabrion allegedly murdered Timmerman (“Timmerman”) lies within the special territorial jurisdiction of the United States as defined in § 7(3). J.A. at 201-12 (6/11/01 Dist. Ct. Op.). Section 7(3) includes within the special territorial jurisdiction of the United States:
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, arsenal, dockyard, or other needful building.
18 U.S.C. § 7(3). The district court’s conclusion regarding § 7(3) was not an issue upon remand and was not addressed by the parties in their supplemental briefs before this court, so I will not address it here.
The question before us today is whether the federal government has accepted concurrent legislative jurisdiction over the Oxford Lake parcel. Precedent establishes that, in the absence of evidence of contrary intent, a presumption of acceptance of jurisdiction by the federal government exists with respect to land acquired prior to 1940. The federal government purchased the Oxford Lake parcel in July 1939, and Gabrion has presented no evidence suggesting that the federal government took the requisite affirmative steps to rebut a presumption of acceptance of jurisdiction at that time. United States Department of Agriculture (“USDA”) and interdepartmental opinions, written after 1940, are advisory and insufficient to rebut the acceptance of jurisdiction. I therefore conclude that the federal government has accepted jurisdiction over the Oxford Lake parcel.
A. Acceptance of Jurisdiction by the Federal Government
Gabrion’s argument that the federal government never formally accepted juris*865diction over the Oxford Lake parcel pursuant to 40 U.S.C. § 255 is unavailing. Prior to 1940, courts applied a rebuttable presumption of acceptance by the federal government to jurisdiction over public lands that it owned. The Supreme Court held that when a state cession statute “conferred a benefit, the acceptance of the act is to be presumed in the absence of any dissent on [the federal government’s] part.” Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 528, 5 S.Ct. 995, 29 L.Ed. 264 (1885); see also Benson v. United States, 146 U.S. 325, 380,13 S.Ct. 60, 36 L.Ed. 991 (1892) (same). The Court presumed federal acceptance of jurisdiction “in the absence of evidence of a contrary intent.” Silas Mason Co. v. Tax Comm’n, 302 U.S. 186, 207, 58 S.Ct. 233 (1937). With the passage of § 255 on February 1, 1940,7 the federal government had to start giving notice regarding acceptance of jurisdiction over public lands acquired thereafter. Paul v. United States, 371 U.S. 245, 264, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963). The Supreme Court and the Eighth Circuit have applied the notice requirement of § 255 to national forest lands acquired after 1940. Adams v. United States, 319 U.S. 312, 315 n. 6, 63 S.Ct. 1122, 87 L.Ed. 1421 (1943) (reasoning that “[i]n view of the general applicability of the 1940 Act it is unnecessary to consider the effect of the Weeks Forestry Act, 16 U.S.C. § 480”); Hankins v. Delo, 977 F.2d 396, 398 (8th Cir.1992) (holding with respect to the Mark Twain National Forest in Missouri that “[t]he parties do not indicate the United States accepted jurisdiction”). The application of the § 255 notice requirement to national forest lands makes it logical to conclude that the prior rebuttable presumption of acceptance of federal jurisdiction also applied to national forests.
B. Administrative Opinions
For several reasons, post-1940 opinions of the USDA, interdepartmental reports, and the Forest Service Manual, which exhibit a strong preference for maintaining proprietorial rather than concurrent jurisdiction over national forests, are insufficient to rebut a presumption of federal legislative jurisdiction over the Oxford Lake parcel in the Manistee National Forest. To begin, the Department of Justice and not the USDA possesses the authority to determine whether the federal government has criminal jurisdiction over acts committed upon federal land. 28 C.F.R. § 0.56 (“The Assistant Attorney General in charge of the Criminal Division is authorized to determine administratively whether the federal government has exclusive or concurrent jurisdiction over offenses committed upon lands acquired by the United States, and to consider problems arising therefrom.”)
Furthermore, the executive-branch opinions cited by Gabrion would not qualify for Chevron deference unless “it appealed] that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). The USDA statements cited by the defendant represent merely opinions and commission-report findings rather than official agency interpretations promulgated under the Department’s rule-making authority. “Interpretations such as those in opinion letters — like interpretations contained in policy statements, agen*866cy manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Moreover, statements made after the enactment of § 255 cannot rebut the presumption of acceptance regarding property acquired before 1940. Even if we were to accept the statements as potentially relevant, they probably do not represent the type of affirmative action required to rebut the pre-1940 presumption of acceptance. See Silas Mason, 302 U.S. at 207-OS, 58 S.Ct. 233 (holding that when Congress “validated and ratified ‘all contracts’ ” in connection with a dam project, “the evidence [was] clear that the Federal Government contemplated the continued existence of state jurisdiction”); Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 372, 84 S.Ct. 857, 11 L.Ed.2d 782 (1964) (holding that the federal government did not lose the exclusive jurisdiction it acquired in 1930 over a federal enclave via cession by the state of Louisiana, when United States “leased [to a private company] the right to exploit parts of the reservation for oil and gas and for an oil pipeline”).
Finally, the reports themselves are not conclusive regarding the question of jurisdiction. The 1956 Report stated that the terms it uses to describe jurisdiction “are made here only for the purposes of this study, and they are not purported as absolute criteria for interpreting legislation or judicial decisions, or for other purposes.” Jurisdiction Over Federal Areas Within the States: Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States, Part I 13-14 (1956) (Def.Ex.D). The same report also emphasized that agency preference does not determine the jurisdictional status of lands, and that often lands acquired before 1940 “are held with more jurisdiction in the United States than is considered best by the Federal agency concerned.” Id. at 35. Although several of the statements express a preference that Congress exercise only proprietorial ownership, they do not deny the legality of concurrent legislative jurisdiction under § 480. See, e.g., Land & Natural Res. Div., U.S. Dep’t of Justice, Fed. Legislative Jurisdiction: Report Prepared for the Public Land L.Rev. Comm. 75 (September 1969) (Def.ExJ) (noting that “only seven of the Forest Service’s 245 properties contain other than proprietorial jurisdiction”); Report of the Interdepartmental Committee, Part II at 114 (Def.Ex.E) (stating that “[t]he forest service ... has not accepted the jurisdiction proffered by the statutes of many states, and the vast majority of federal forest lands are held by the Federal Government in a proprietorial status only”) (emphasis added); Report of the Interdepartmental Committee, Part I at 64, 101 (Def.Ex.D) (noting that the Department of Agriculture exercises “proprietorial” ownership over nearly all of its lands). Nor do the statements deny the existence of federal legislative jurisdiction over lands acquired before 1940. Id. These statements merely reflect efforts to resolve the jurisdictional confusion created by the passage of § 255, with respect to lands acquired after the 1940 enactment. Roger W. Haines, Jr., Crimes Committed on Federal Property — Disorderly Jurisdictional Conduct, 4 Cbim. Just. J. 375, 393-95 (1981).
III. DOES THE PATCHWORK CHARACTER OF CONCURRENT FEDERAL AND EXCLUSIVE STATE JURISDICTION IN THE MANIS-TEE NATIONAL FOREST VIOLATE THE CONSTITUTIONAL GUARANTEES OF DUE PROCESS AND EQUAL PROTECTION?
Gabrion argues that the patchwork character of federal criminal jurisdiction in the *867Manistee National Forest, which depends on the date of acquisition of parcels of land, violates his rights to due process and equal protection under the Fifth Amendment as well as the prohibition on cruel and unusual punishment under the Eighth Amendment.8 Gabrion’s primary argument is that the federal government’s patchwork jurisdiction is inconsistent with the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which prohibited arbitrary enforcement of the death penalty. Id. at 249, 92 S.Ct. 2726 (Douglas, J., concurring); id. at 274, 92 S.Ct. 2726 (Brennan, J., concurring); see also id. at 310, 92 S.Ct. 2726 (Stewart, J., concurring) (stating that the Eighth and Fourteenth Amendments prohibit “wanton[ ]” and “freakish[ ]” imposition of the death penalty). While I agree that the pattern of jurisdiction in the Manistee National Forest created by 16 U.S.C. § 480 and 40 U.S.C. § 255 can be characterized as patchwork, I do not agree that this pattern is arbitrary. A clear set of legal rules determines which national forest lands are characterized by concurrent federal criminal jurisdiction and which national forest lands are characterized by state jurisdiction because the federal government has not accepted jurisdiction. In conclusion, I do not think that the patchwork character of federal criminal jurisdiction in the Man-istee National Forest means that the government’s prosecution of Gabrion for the death penalty pursuant to 18 U.S.C. § 1111 violates the Eighth Amendment.9
Neither does the patchwork jurisdiction violate Gabrion’s right to equal protection under the Fifth Amendment’s Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) (holding that the District of Columbia’s maintenance of segregated schools violated the Fifth Amendment’s Due Process Clause). The government makes a convincing argument that federal Indian law offers an analogous area where patchwork jurisdiction does not violate the Equal Protection Clause of the Fourteenth Amendment, reversely incorporated into the Fifth Amendment. The Supreme Court has described jurisdiction in “Indian country” as “governed by a complex patchwork of federal, state, and tribal law.” Duro v. Reina, 495 U.S. 676, 680 n. 1, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Whether the federal or a tribal or state government has criminal jurisdiction depends on the location where a crime is committed, the na*868ture of the crime, and whether both the perpetrator and the victim are members of the same tribe. See Negonsott v. Samuels, 507 U.S. 99, 102-03, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993) (describing jurisdictional rules under the Indian Country Crimes Act, the Indian Major Crimes Act, and the Kansas Act); Duro, 495 U.S. at 688, 110 S.Ct. 2053 (holding that a tribe does not have criminal jurisdiction over a nonmember Indian who commits a crime on the tribe’s territory). In Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979), the Supreme Court considered whether such patchwork jurisdiction is arbitrary and irrational under the Equal Protection Clause. The case concerned a Washington law that granted jurisdiction to the state over Indian persons and Indian territory within the state, with the exception that in all but eight subject-matter areas Indians would retain jurisdiction on trust or restricted lands unless a tribe requested otherwise. Id. at 465-66, 99 S.Ct. 740. The Washington statute thus created patchwork jurisdiction in both a geographic and thematic sense. The Ninth Circuit found that the law’s creation of checkerboard jurisdiction lacked a rational basis and violated the Equal Protection Clause. Id. at 467-68, 99 S.Ct. 740. The Supreme Court overturned the court of appeals decision, however, explaining: “The lines the State has drawn may well be difficult to administer. But they are no more or less so than many of the classifications that pervade the law of Indian jurisdiction.” Id. at 502, 99 S.Ct. 740.
Gabrion further argues that the patchwork character of federal jurisdiction over the Manistee National Forest, resulting from the legal regime established by 16 U.S.C. § 480 and 40 U.S.C. § 255, violates his due process right to ex ante notice of the penalty for his crime. The cases cited by the government in response are not dispositive of this issue.10 I find Gabrion’s *869argument unpersuasive, however, for three reasons. First, because 18 U.S.C. § 1111 was operative at the time that Gabrion allegedly committed the murder, Gabrion had notice of the possibility that he would receive the death penalty for committing premeditated murder within the special maritime and territorial jurisdiction of the United States. “The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system.” Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). There are no ex post facto concerns in this case that might give us pause regarding whether Gabrion had notice.11 Second, a reasonable actor entering a national forest would have been aware of the possibility that the federal government might have criminal jurisdiction over acts committed therein. Third, the fact that the federal government has criminal jurisdiction over some but not all of the parcels in the Manistee National Forest and that these are arrayed in a patchwork fashion does not mean Gabrion had no notice that death might be the potential penalty for first-degree murder within Manistee. Even if the federal government had criminal jurisdiction over the entirety of the Manistee National Forest, at some seemingly arbitrary geographic point a person would cross over from the area of Michigan’s criminal jurisdiction to the area of concurrent federal jurisdiction. If that person committed first-degree murder on one side of the line, he could not receive the death penalty; if the same person committed first-degree murder on the other side of the line, he might receive the death penalty. The jurisdictional consequences of committing first-degree murder within or outside of the Oxford Lake parcel is in no significant respect more arbitrary than the jurisdictional consequences of the same act were there no patchwork jurisdiction within the Manistee National Forest. In conclusion, I do not think the patchwork jurisdiction in the Manistee National Forest violates Gabrion’s right to due process or equal protection under the Fifth Amendment.
IV. DID THE UNITED STATES PRESENT SUFFICIENT EVIDENCE FOR THE JURY TO FIND THAT GABRION DROWNED TIM-MERMAN IN THE OXFORD LAKE PARCEL, PURCHASED BY THE FEDERAL GOVERNMENT IN JULY 1939?
The government’s theory of the case is that Timmerman was alive when Gabrion bound her with chains and padlocks, connected the chains to cinder blocks to weigh her down, took her into a boat, and dumped her into Oxford Lake to drown.12 *870By contrast, Gabrion argues that the government failed to prove beyond a reasonable doubt that Timmerman drowned in Oxford Lake, or even that her death took place on federal property. Gabrion claims that assuming arguendo that the federal government possesses criminal jurisdiction over the Oxford Lake parcel, the government has not proved the factual foundation necessary to establish criminal jurisdiction. Had Gabrion killed Timmerman outside of the Manistee National Forest, or in a different parcel of land within Manistee, and then dumped her body into Oxford Lake, the federal government would not necessarily have jurisdiction over the land where the murder took place. Thus, according to Gabrion, if the federal government did not present sufficient evidence to prove beyond a reasonable doubt that Ga-brion drowned Timmerman in the Oxford Lake parcel, then the government would also not be able to establish criminal jurisdiction in this case.
The issue of what standard to apply in reviewing the district court’s finding of jurisdiction is complicated because the question of jurisdiction is intermeshed with the merits of the case, as the location of the murder is an element of the offense under 18 U.S.C. § 1111(b). In its June 2001 opinion, the district court had cited United States v. Prentiss, 206 F.3d 960, 967 (10th Cir.2000), for the proposition that “[t]he fact that the alleged offense occurred within the special maritime and territorial jurisdiction of the United States is an element of the crime that must be alleged in the indictment and established at trial.” J.A. at 202 (6/11/01 Dist. Ct. Op. at 2). Subsequent to the district court’s opinion, however, the Tenth Circuit sitting en banc reversed Prentiss, holding that the indictment’s failure to allege an element of the offense in that case did not strip the district court of subject-matter jurisdiction. United States v. Prentiss, 256 F.3d 971, 973 (10th Cir.2001) (en banc). The sufficiency of the indictment, however, is not at issue in this case.
Nevertheless, in evaluating the jurisdictional issue we must review both legal conclusions of the district court and factual conclusions of the jury. The district court held in its June 2001 opinion that Oxford Lake is within the territorial jurisdiction of the United States as defined under 18 U.S.C. § 7(3), and the jury concluded that Gabrion murdered Timmerman within the territorial jurisdiction of the United States, as defined in the jury instructions. On remand, the district court held further “that the Weeks Act permitted the United States to obtain concurrent jurisdiction over national forest lands; that the State of Michigan granted concurrent jurisdiction to the United States over national *871forest lands;” and that no evidence rebuts the presumption that the United States accepted jurisdiction over the Oxford Lake parcel when it purchased the parcel in 1939. United States v. Gabrion, No. 1:99— CR-76, 2006 WL 2473978, at *10 (W.D.Mich. Aug.25, 2006).
Despite the Tenth Circuit’s en banc opinion in Prentiss, we may still consider whether we find persuasive the dicta in the panel opinion in Prentiss stating that “[wjhile the court may determine, as a matter of law, the existence of federal jurisdiction over a geographic area, whether the locus of the offense is within that area is an essential element that must be resolved by the trier of fact.” Prentiss, 206 F.3d at 967. Following a similar line of reasoning, the Ninth Circuit rejected the federal government’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) for lack of subject-matter jurisdiction, in a case that involved a “jurisdictional requirement [that was] also a substantive element of the offense charged.” United States v. Nukida, 8 F.3d 665, 670 (9th Cir.1993) (holding that when the issue of subject-matter jurisdiction is “intermeshed” with the merits of the case, jurisdiction “should be determined at trial”) (quoting United States v. Ayarza-Garda, 819 F.2d 1043, 1046, 1048 (11th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987)). The Eleventh Circuit opinion, which the Ninth Circuit opinion quoted in reaching its holding, is also cited positively in Charles Alan Wright & Arthur R. Miller, 1A Federal Practice & Procedure: Criminal § 194 (3d ed.2001) for the proposition that a “court may defer its ruling [on a Rule 12 motion] if factual matters will be developed at trial that are relevant to the decision.” Id. at § 194 & n. 1. Even if I were to agree that under the above precedent the district judge appropriately denied Gabrion’s motion to dismiss, in part because the factual findings related to jurisdiction were the province of the jury, that would not resolve the question of what standard to apply in reviewing the district court’s finding of jurisdiction.
Whether the government proved that Gabrion murdered Timmerman on a parcel of national forest land over which the federal government has criminal jurisdiction is an element of the offense, which the government must prove to the jury beyond a reasonable doubt. United States v. Gomez, 87 F.3d 1093, 1095 (9th Cir.1996) (prosecution must prove to the jury, beyond a reasonable doubt, a jurisdictional element requiring that the building damaged in the charged arson had substantial connection to interstate commerce); Parker v. Ward, 622 F.2d 298, 302-08 (8th Cir.), cert. denied, 449 U.S. 851, 101 S.Ct. 143, 66 L.Ed.2d 63 (1980) (for federal robbery and murder statutes, location in which crime took place is a jurisdictional element that must be proven beyond a reasonable doubt). The government’s burden of proof regarding the elements of the offense, however, also does not answer the question of what standard of review we are to apply in responding to Gabrion’s argument that the government did not prove he had drowned Timmerman in Oxford Lake insofar as Gabrion’s argument requires us to review the district court’s finding of jurisdiction.
There are two possible standards of review that we may consider applying. Were we responding to Gabrion’s sufficiency-of-the-evidence requirement in relation to the merits of the case, we would need to apply the deferential standard set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 *872(1979).13 Under the Jackson standard, we would determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. I find it significant, however, that we are not now reviewing the merits of the case and are instead reviewing the district court’s finding of jurisdiction. I therefore think that it may be inappropriate to apply the extremely deferential Jackson standard. Instead, we might apply the standard ordinarily used when we review a district court’s determination regarding jurisdiction. Under this standard, we would review the district court’s legal conclusions de novo and the district court’s factual determinations for clear error. Certain Interested Underwriters at Lloyd’s, London v. Layne, 26 F.3d 39, 41 (6th Cir.1994) (“In reviewing the district court’s determination concerning its jurisdiction, we review the court’s findings of fact for clear error and conclusions of law de novo.”); see also E.W. Scripps Co. & Subsidiaries v. United States, 420 F.3d 589, 596 (6th Cir.2005); Thomas v. Wo olum, 337 F.3d 720, 725 (6th Cir.2003). We do not have occasion to resolve the issue of which standard to apply today, because under either standard we would need to affirm the jury or the district court’s factual conclusions supporting jurisdiction.
Were we to apply the Jackson standard, we would look to the trial evidence. The trial evidence demonstrated that Timmer-man’s body was found in Oxford Lake, approximately seventy-five to one-hundred feet from shore, 4 Joint Appendix (“J.A.”) at 1004 (Trial Tr. at 951:13-16), and approximately 227 feet from the boundary line of the Manistee National Forest. 4 J.A. at 1172 (Trial Tr. at 1187: 15-16). That portion of the lake contained a very thick mat of vegetation that made it difficult to get to the body. 4 J.A. at 1007 (Trial Tr. at 954:18-21); 1014-15 (Trial Tr. at 961:1-962:4); 1031 (Trial Tr. at 990:11-23). Both the fisherman who discovered the body and the police who recovered it testified that the thickness of the vegetation rendered it impossible for the body to have floated to that location from the northern portion of the lake. 4 J.A. at 1014 (Trial Tr. at 961:13-23); 1048-49 (Trial Tr. at 1007:24-1008:4).
The trial evidence indicated that Tim-merman’s limbs were restrained with handcuffs, chains, and locks, and that her body was weighed down with cement blocks. 4 J.A. at 1040-41, 1043 (Trial Tr. at 999-1000, 1002). Further, her mouth and eyes were covered with duct tape wrapped around her head. 4 J.A. at 1010 (Trial Tr. at 957:10-18); 1044 (Trial Tr. at 1003:14-46); 1060-61 (Trial Tr. at 1019:22-1020:8). While investigating the crime, police recovered duct tape on the road approaching the lake, 4 J.A. at 1029 (Trial Tr. at 988:21-23).
The coroner testified that drowning was the most likely cause of death, 4 J.A. at 1228-47 (Cohle Test, at 7-35), and that Timmerman’s body had likely been in the water for three to four weeks before it was discovered, 4 J.A. at 1234 (Cohle Test, at 16:14-15). He explained that drowning is a diagnosis of exclusion that required him to reject other causes of death, 4 J.A. at 1232 (Cohle Test, at 13:11-24), and that he examined Timmerman’s neck and face and found no evidence of asphyxiation, 4 J.A. *873at 1240-48 (Cohle Test, at 22-25). However, on cross-examination, he also testified that he “can’t rule out that she was asphyxiated, for example, at some other time and then dumped into the lake.” 4 J.A. at 1247 (Cohle Test, at 85:15-17).
Finally, three witnesses testified at trial that Gabrion told each of them separately either that he had killed a woman by drowning her in a lake or that if he were to kill someone, he would do so in that manner. An old acquaintance of Gabrion from childhood, Lloyd Westcomb, testified that Gabrion told him that Gabrion “had gotten rid of his girlfriend permanently ... that he bound her down, threw her over the boat in a lake, something like that.” 4 J.A. at 1271 (Trial Tr. at 1355: 8-11). Another long-time acquaintance of Gabrion, Floyd Wismar, testified that Ga-brion once told him: “something real close to the effect that it’s not hard to get rid of somebody; you just weight ‘em down and throw ‘em in a lake.” 4 J.A. at 1326 (Trial Tr. at 14: 4-6). Gabrion’s nephew, Michael Gabrion, Jr. testified that Gabrion had said on four or five occasions that if he ever killed someone he would do so by wrapping the person in chicken wire and chains, weighting the person with bricks, and throwing the person in a lake. 4 J.A. at 1337 (Trial Tr. at 42: 5-19).
The evidence presented at trial was sufficient for a reasonable jury to conclude beyond a reasonable doubt that Timmer-man drowned in Oxford Lake. Although the coroner said that he was unable to “rule out” asphyxiation as the cause of death, he also offered detailed testimony as to why he thought asphyxiation was unlikely. From this, a reasonable jury could conclude beyond a reasonable doubt that Timmerman drowned. The jury also could have concluded beyond a reasonable doubt that Timmerman drowned in the Oxford Lake parcel, ie., the portion of the lake owned by the federal government. The uncontroverted testimony that the thick bed of weeds north of where her body was found renders it extremely unlikely that Timmerman’s body drifted southward over 227 feet, from privately controlled waters to the location where it was found. Accordingly, a jury could conclude that the murder took place within the federal government’s jurisdiction. For these reasons, the government presented sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that Gabrion murdered Timmerman on federal property that lies within the territorial jurisdiction of the United States. Thus, we would reject Gabrion’s suffieiency-of-the-evidence argument under the Jackson standard.
Were we to review the district court’s factual determinations for clear error we would also need to uphold the district court’s conclusion that it had subject-matter jurisdiction over Gabrion’s prosecution pursuant to § 1111. In its June 2001 opinion ruling on Gabrion’s motion to dismiss for lack of subject-matter jurisdiction, the district court addressed “[t]he government’s theory of jurisdiction ... based upon its assertion that because it owns the bed of the southern one-third of Oxford Lake, it has jurisdiction over crimes committed in that portion of the lake.” J.A. at 208 (6/11/01 Dist. Ct. Op. at 8). The district court concluded that “[bjecause there is no question that the federal government owns the bed of the southern one-third of Oxford Lake, it also has jurisdiction over crimes occurring in the space immediately above the bed.” J.A. at 211 (6/11/01 Dist. Ct. Op. at 11). In the same opinion, the district judge stated that he would not make a finding regarding the location of the alleged murder because that was an element of the offense to be resolved by the jury. J.A. at 212 (6/11/01 Dist. Ct. Op. at 12). Follow*874ing trial, however, in its August 2006 opinion on remand, the district court did make findings of fact related to jurisdiction. In addition to addressing the questions of law regarding jurisdiction, the district court analyzed the evidence presented at trial under a preponderance of the evidence standard and determined “that the United States had jurisdiction to prosecute crimes occurring on the Oxford Lake parcel of the Manistee National Forest.” Gabrion, 2006 WL 2473978, at *10. This statement makes obvious that the district court concluded as a factual matter that Gabrion killed Timmerman by drowning her in the Oxford Lake parcel. The district court reached this factual determination in accord with the jury’s conviction of Gabrion for killing Timmerman within the territorial jurisdiction of the United States. I think the trial evidence that I reviewed above requires us to conclude that the district court’s factual determination that Gabrion drowned Timmerman in the southern third of Oxford Lake did not amount to clear error. Accordingly, Ga-brion’s sufficiency-of-the-evidence argument fails.
V. DID THE DISTRICT COURT ERR BY INSTRUCTING THE JURY THAT GABRION MURDERED TIMMERMAN WITHIN THE SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES IF HE MURDERED HER ON PROPERTY OWNED BY THE UNITED STATES?
Gabrion argues that the district court gave the jury an erroneous instruction regarding jurisdiction in violation of his right to a fair trial under the Fifth and Sixth Amendments. The district court instructed the jury that: “If you find beyond a reasonable doubt that the government has proven that the location of the alleged murder occurred on property owned by the United States, you are instructed that such property is within the special maritime and territorial jurisdiction of the United States.” Gabrion argues that the jury instruction fundamentally misconstrued the law because it did not allow for the possibility that Gabrion murdered Tim-merman on a parcel of federal land in the Manistee National Forest, which the federal government acquired after 1940 and for which it did not accept jurisdiction.
Although we correct “defects in subject-matter jurisdiction ... regardless of whether the error was raised in district court,” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the jury-instruction issue does not itself raise a defect in subject-matter jurisdiction but rather raises the question of whether the jury properly found the factual foundation necessary to establish federal criminal jurisdiction. Therefore, because Gabrion’s counsel did not object to the jury instructions at trial, we review the instructions for plain error. United States v. Donathan, 65 F.3d 537, 540 (6th Cir.1995); Fed.R.CRIm.P. 52(b). “Under that test, before an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). When these three conditions are satisfied, we may exercise our discretion to “correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Ola-no, 507 U.S. at 736,113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)).
*875The district court’s jury instruction constituted an error under the first part of the test because, as I have explained supra, federal ownership of national forest land is not synonymous with federal criminal jurisdiction. The district court’s jury instruction ignored the possibility that the jury might conclude that Gabrion murdered Timmerman on a parcel within the Manistee National Forest that the federal government owned but over which it did not have criminal jurisdiction.
Whether the district court’s error was “plain” under the second part of the test set forth in Olano involves a more complicated inquiry. “A ‘plain error’ is one that is clear or obvious.” United States v. Oliver, 397 F.3d 369, 379 (6th Cir.2005) (citing Olano, 507 U.S. at 734, 113 S.Ct. 1770). For us to consider the error plain, however, the error does not need to be obvious at the time of the trial but rather can become obvious pending appeal. Id. An error may be plain “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal.” Johnson, 520 U.S. at 468, 117 S.Ct. 1544. The Supreme Court’s decision in Johnson and our decision in Oliver thus stand for the proposition that although the law regarding 16 U.S.C. § 480 and 40 U.S.C. § 255 — specifically, the relationship between the timing of the federal government’s acquisition of a parcel of land and federal criminal jurisdiction — may not have been clear at the time of trial, the jury instruction may still have constituted plain error.
The instant case, however, differs in an important respect from the procedural histories of Johnson and Oliver. In those cases, intervening Supreme Court decisions changed the law between the time of trial and that of the defendants’ appeals. Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (explaining that an intervening decision requiring the issue of materiality to be submitted to the jury made the judge’s resolution of the issue plain error); Oliver, 397 F.3d at 379 (explaining that the Supreme Court’s decision in Booker made clear that the defendant’s sentence in district court violated his Sixth Amendment rights). By contrast, in the instant case, no intervening Supreme Court or Sixth Circuit decision has made plain the error in the jury instruction’s description of the relationship between federal ownership of land and federal criminal jurisdiction. The only decision to make clear that error is our judgment today.
We do not need to resolve this issue today, however, because even if we were to conclude that the jury instructions constituted plain error, the error did not affect Gabrion’s substantial rights. “In most cases [for an error to affect a defendant’s substantial rights] the error must have been prejudicial.” United States v. Webb, 403 F.3d 373, 382 (6th Cir.2005) (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770), cert. denied, 546 U.S. 1126 (2006). All the evidence at trial related to the prosecution’s theory that Gabrion drowned Tim-merman in the southern portion of Oxford Lake over which the federal government has criminal jurisdiction. In addition to the physical evidence regarding the location and condition of Timmerman’s body when it was discovered, the testimony of the coroner, and the testimony of West-comb, Wismar, and Michael Gabrion, Jr., additional evidence also placed Gabrion at or near Oxford Lake. Pearl Hall and Ron Hall testified that when they were driving to Oxford Lake in June 1997 in preparation for turtle-trapping season, they encountered a pick-up truck driven very fast in the other direction, with a boat sticking out the back of it. J.A. at 1252-59 (Trial Tr. at 1306-32). Pearl Hall testified that Gabrion was driving the truck. J.A. at 1256 (Trial Tr. at 1320: 16-19). Ron Hall *876testified that when he subsequently got out of his own vehicle to look at the lake, he saw “marks where someone had drug [sic] one [boat] out of there.” J.A. at 1261 (Trial Tr. at 1333: 6). Kathy Kirk testified that when she visited Oxford Lake with her mother in June 1997, they saw at the lake a pick-up truck with a boat in the back with two men and one woman in it. J.A. at 1396-1401 (Trial Tr. at 1574-79). Kirk testified that Gabrion was one of the men in truck that day, J.A. at 1401 (Trial Tr. at 1579: 3-14), and that she recognized the woman later when she saw her pictures in the news as the woman drowned in Oxford Lake (Timmerman). J.A. at 1404 (Trial Tr. at 1582: 1-11).
I therefore agree with the government that the theory of the prosecution and the government’s evidence made it permissible for the district court to instruct the jury that if Gabrion murdered Timmerman on federally owned property, then he did so within the special maritime and territorial jurisdiction of the United States. An instruction that referenced other parcels of federally owned land within the Manistee National Forest and the jurisdictional consequences of that land would perhaps have confused the jury. Gabrion argues that the prosecution also presented evidence regarding the two-track roads that lead to Oxford Lake, which cross parcels of land over which the federal government does not have jurisdiction. See J.A. at 1015, 1022-25, 1029, 1088, 1105, 1252-53 (Trial Tr. at 962: 22-23, 981-84, 988: 22-23, 1057: 2-7, 1099: 17-23, 1306-1307). But no evidence presented by either the prosecution or the defense suggested that Ga-brion might have murdered Timmerman on one of these other parcels of land. Based on the evidence presented at trial, if the jury found that Gabrion murdered Timmerman on federal property, it must have necessarily also found that Gabrion murdered Timmerman by drowning her in the southern portion of Oxford Lake owned by the federal government.
VI. CONCLUSION
For the reasons explained above, I concur in the judgment affirming the district court’s holding that the federal government has jurisdiction to prosecute Gabrion pursuant to 18 U.S.C. § 1111 in the federal courts. I think that the relevant precedent and facts make clear that 16 U.S.C. § 480 does not preclude concurrent federal and state criminal jurisdiction over national forest lands. Furthermore, because the federal government purchased the Oxford Lake parcel prior to 1940 there exists a presumption that the federal government accepted legislative jurisdiction over the parcel, and Gabrion has not presented persuasive evidence rebutting this presumption. Thus, the southern third of Oxford Lake where the jury concluded that Ga-brion murdered Timmerman lies within the special maritime and territorial jurisdiction of the United States as defined by 18 U.S.C. § 7(3). The patchwork character of the federal criminal jurisdiction in the Manistee National Forest does not violate the Fifth or Eighth Amendments. The government presented sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that Gabrion murdered Timmerman by drowning her in the portion of Oxford Lake owned by the federal government. Finally, the district court’s instructions to the jury did not constitute plain error affecting Gabrion’s substantial rights. Therefore, the federal government had jurisdiction to prosecute Gabrion for murder pursuant to 18 U.S.C. § 1111.
. I also find it relevant to note that two other circuits have upheld convictions involving murder in national forests. The Fifth Circuit in United States v. Avants, 367 F.3d 433 (5th Cir.2004), upheld the conviction of Ernest Henry Avants under 18 U.S.C. §§ 1111 and 7(3), for a 1966 racially motivated murder in a national forest located in Mississippi. The Fourth Circuit in United States v. Jackson, 327 F.3d 273 (4th Cir.2003), upheld the conviction of Richard Allen Jackson for use of a firearm in relation to the kidnapping, sexual abuse, and murder of a victim in a national forest in North Carolina, in violation of 18 U.S.C. § 924(j). Although each of these circuits implicitly found that the district courts had subject-matter jurisdiction over the criminal prosecutions, neither discussed the issue of jurisdiction in their opinions. For this reason, they do not aid our analysis, but the decisions are nevertheless relevant to the question of whether the Western District of Michigan had jurisdiction in this case.
. "The Enclave Clause power is broader than its wording indicates in two ways. First, Congress may exercise it over more than just purchased property.... Second, the catch-all needful Buildings’ in the Clause’s list of places subject to the power has been interpreted to include more than edifices with four walls.... [I]t may apply to lands used for a National Park.” Marla E. Mansfield, A Primer of Public Land Law, 68 Wash. L.Rev. 801, 804 (1993).
. The Supreme Court in Kleppe upheld the constitutionality of the Wild Free-Roaming Horses and Burros Act, which authorized both the Secretary of the Interior through the Bureau of Land Management and the Secretary of Agriculture through the National Forest Service to protect the animals. 426 U.S. at 531, 96 S.Ct. 2285. The Court thus implicitly found that Congress had legislative jurisdiction, at least with respect to civil matters, over public lands including the national forests. The Court rejected the plaintiffs-appel-lees’ narrow construction of the Property Clause as authorizing Congress to legislate only in protection of the land itself. Instead, the Court held that the Property Clause is broad enough to “to support legislation protecting wild animals that live on federal property ... [and] which are not themselves federal property.” Id. at 536-37, 96 S.Ct. 2285.
. The language in the opinions suggests that the default assumption is that the federal government has exclusive legislative jurisdiction over public lands, but that § 480 provides for the states’ retention of concurrent jurisdiction over national forests. Furthermore, were § 480 to provide for exclusive legislative jurisdiction by the states, one would expect the opinions to state this explicitly.
. The dissent's argument that California merely holds that jurisdiction over national forests exists when there is a specific federal statute giving courts jurisdiction and that jurisdiction does not exist in the absence of such a statute does not help us resolve this case. Dissent at 881-82. In both California and the instant case, such a statute exists in the form of 28 U.S.C. § 1345 and 18 U.S.C. § 3231, respectively. The only question is whether first-degree murder in a national forest is an offense against the laws of the United States. For reasons I explain in further detail infra, I believe that it is.
. I disagree with the dissent’s argument that Raffield relied on the language in § 551 regulating misdemeanor traffic infractions and that, accordingly, the opinion’s holding is limited to the federal government’s jurisdiction over drunk driving in the national forests. Dissent at 882. The Fourth Circuit did not find that Raffield had violated § 551. Instead, the opinion found that " § 551 confers broad federal jurisdiction over activities that affect the national forests.” Raffield, 82 F.3d at 612. The Fourth Circuit found that as a result, national forests lay within the territorial jurisdiction of the United States under 18 U.S.C. § 7(3) and that therefore the Assimila-tive Crimes Act applied to the forest. Under parallel reasoning, we should hold that the United States has jurisdiction to enforce 18 U.S.C. § 1111 in the national forests. This conclusion is mandated because 16 U.S.C. § 480 allows for concurrent state and federal jurisdiction; there is no evidence contradicting a mandatory presumption in this case that the federal government has accepted jurisdiction over the Oxford Lake parcel; Gabrion violated § 1111; and Oxford Lake falls within the scope of § 7(3).
. In 2002, Congress renumbered 40 U.S.C. § 255 as 40 U.S.C. § 3112. Pub.L. No. 107-217, § 1, 116 Stat. 1144
. In Sections III through V of my opinion, I discuss Gabrion's argument regarding the patchwork character of federal jurisdiction in the Manistee National Forest, as well as Ga-brion’s arguments regarding the sufficiency of the evidence required to establish jurisdiction and the jury instructions respecting jurisdiction. I have addressed these issues because although they touch on the merits of the case, they are also intertwined with the question of whether the district court had subject-matter jurisdiction over this case. Were Gabrion to succeed on any one of these arguments, I do not think the district court would have properly exercised jurisdiction. Furthermore, the parties argued these three issues in briefs filed in February 2007, in response to our request for briefing on the issue of jurisdiction.
. The Supreme Court’s decision in Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), which Gabrion also cites for the proposition that the death penalty cannot be imposed in an arbitrary and irrational manner, is similarly inapposite. In Parker, the Supreme Court overturned the Eleventh Circuit's denial of habeas corpus relief on the ground that the Florida Supreme Court had affirmed the death penalty based on the incorrect determination that the trial court had found no nonstatutory mitigating circumstances. Id. at 318-21, 111 S.Ct. 731. By contrast, the instant case does not involve the question whether an error in judicial process had denied Gabrion the right to rational administration of the death penalty.
. The government cites Cornfield, v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260 (1897), as an illustration of a patchwork ownership pattern between public and private land. Cornfield, however, is not relevant to the issue of notice because the case concerned the government’s regulatory powers under the Property Clause and not the question whether patchwork criminal jurisdiction violates the Due Process Clause. The government further cites two opinions from our sister circuits, which held that lack of notice to a federal employee and to an alien criminal defendant regarding the exact penalties for their acts did not violate due process. In Farrell v. Dep’t of Interior, 314 F.3d 584, 590-94 (Fed.Cir.2002), the Federal Circuit held that due process does not require advance notice to employees of the specific disciplinary penalties to which they may be subject. In United States v. Miranda-Ramirez, 309 F.3d 1255 (10th Cir.2002), an alien criminal defendant challenged the recommended terms of his imprisonment for unauthorized reentry into the United States after he was deported following conviction for an aggravated felony. Id. at 1257-58. Nevertheless, the Tenth Circuit rejected the defendant's claim that his sentence violated due process because it exceeded the potential sentence incorrectly cited on a form provided to the defendant when he was deported. Id. at 1261. These cases are not dispositive. Federal imposition of the death penalty implicates far greater due process concerns than an administrative agency’s disciplinary actions, at issue in Farrell. And the holding of Miranda-Ramirez — that an alien had no due process right to expect that a criminal penalty would be the same as the one cited on a deportation form years earlier — does not speak to an individual's due process right to notice of the potential penalties for his crime before he commits it. Lastly, the government cites United States v. Van Chase, 137 F.3d 579, 582 (8th Cir. 1998), which held that a federal district court had jurisdiction so long as sufficient evidence of acts within Indian territory existed to make out the elements of the offense and that, accordingly, the court could admit evidence of events that took place outside of Indian territory to show the context of the crime. Van Chase, likewise, does not help us resolve the issue at hand, which is not evidentiary but Constitutional in nature.
. In support of his argument that he lacked notice regarding the potential punishment of death, Gabrion compares the instant case to Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), in which the Supreme Court found that the criminal defendant had such notice. Dobbert, however, sheds no light on the instant case. In Dob-bert, the Supreme Court held that a procedural rather than a substantive change to a statute providing for a criminal punishment did not violate the Constitutional prohibition on ex post facto application of the law. Id. at 293-95, 97 S.Ct. 2290. The Court also held that the Florida statute allowing for the death penalty, which operated at the time that the defendant committed his crime, gave him "fair warning” that he might be punished with death. Id. at 297-98, 97 S.Ct. 2290. The fact that Florida subsequently revised the statute, after the defendant committed murder but before his trial, did not violate the prohibition on ex post facto laws. Id. Similar ex post facto concerns to the ones at issue in Dobbert are not present here.
. The superseding indictment dated February 14, 2002 no longer contained the language present in the original indictment, J.A. at 82, alleging that Gabrion drowned Timmer-*870man in Oxford Lake. Instead, the superseding indictment alleged that Gabrion "did, after deliberation, premeditation and malice aforethought, willfully kill Rachael Timmerman within the special maritime and territorial jurisdiction of the United States, specifically in the Manistee National Forest.” J.A. at 83. In his supplemental brief before this court, Gabrion argued that because the federal government had not accepted jurisdiction over the parcels of land within the Manistee National Forest acquired after 1940, the federal government had not produced evidence sufficient to show Gabrion murdered Timmerman within the special maritime and territorial jurisdiction of the United States. In response, the federal government's brief argued that the evidence presented at trial sufficed to prove beyond a reasonable doubt that Ga-brion drowned Timmerman in the Oxford Lake parcel, which the district court had determined to be within the special maritime and territorial jurisdiction of the United States. Accordingly, even though the superseding indictment did not allege specifically that Gabrion drowned Timmerman in the southern third of Oxford Lake, this factual contention is the focus of our inquiry regarding whether the evidence is sufficient to establish jurisdiction.
. In Gomez, the Ninth Circuit declined to resolve the issue of which standard of review should apply, despite concluding that the prosecution must prove the element beyond a reasonable doubt at trial. 87 F.3d at 1097 n. 3 (upholding the existence of a jurisdictional element even under a standard of de novo review for questions of law).