Burns Chronicles No 29 – Public Lands – Part 2 – The Federal Government Has No Jurisdiction

Burns Chronicles No 29
Public Lands – Part 2
The Federal Government Has No Jurisdiction

harney-county-resource-centera-cropped

Gary Hunt
Outpost of Freedom
September 21, 2016

In a previous article, “It’s a Matter of Jurisdiction“, we looked at the constitutional aspect of jurisdiction.  Many will simply ignore that aspect, since they believe that the government is not bound by the Constitution, anymore.  So, we must wonder whether those who enacted laws, more recently, regarding jurisdiction, especially on lands that were obtained for certain purposes, were as doubtful of the intent of the Constitution.

The original buildings on the Refuge were built during the Great Depression under one of the various work programs intended to provide employment.  The land that they were built on was acquired by the government on February 18, 1935.  The remainder of the government-owned land in Section 35, as the Malheur National Wildlife Refuge was expanded, was acquired on November 22, 1948.

Shortly after the first parcel was acquired, on April 27, 1935, Congress enacted “AN ACT To provide for the protection of land resources against soil erosion, and for other purposes”, at 49 STAT 163.  Those “other purposes did include uses anticipated “to preserve public lands and relieve unemployment“.  That Act applied:

(a) On lands owned or controlled by the United States or any of its agencies, with the cooperation of the agency having jurisdiction thereof; and
(b) On any other lands, upon obtaining proper consent or the necessary rights or interests in such lands.

So, it was recognized that the federal government need not have jurisdiction, but more about why, later.

The benefits of the Act would be extended where local government would extend “reasonable safeguards for the enforcement of State and local laws imposing suitable permanent restrictions on the use of such lands…”

So, we see no effort to presume prior jurisdiction, to make all needful rules and regulations, as per Article IX, § 3, cl. 2, or to presume a necessity to require the State to cede the lands to the federal government, as per Article I, § 8, cl. 17, since there were no “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”.

Then, on June 29, 1936, Congress went even further in abiding by the Constitution by clarifying their position on “exclusive Legislation in all Cases whatsoever” (I:8:17), with “AN ACT To waive any exclusive jurisdiction over premises of resettlement or rural-rehabilitation projects…; and for other purposes”, at 49 STAT 2035.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the acquisition by the United States of any real property heretofore or hereafter acquired for any resettlement project or any rural-rehabilitation project for resettlement purposes heretofore or hereafter constructed with funds allotted or transferred to the Resettlement Administration pursuant to the Emergency Relief Appropriation Act of 1935, or any other law, shall not be held to deprive any State or political subdivision thereof of its civil and criminal jurisdiction in and over such property, or to impair the civil rights under the local law of the tenants or inhabitants on such property ; and insofar as any such jurisdiction has been taken away from any such State or subdivision, or any such rights have been impaired, jurisdiction over any such property is hereby ceded back to such State or subdivision.

So, not only did they relinquish all “civil or criminal jurisdiction“, but they ceded back any jurisdiction that had been taken away from any State or subdivision.  Now the record had been set straight, in accordance with the Constitution.

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However, to reinforce that position, we can look to a much more recent statute at 40 US Code 3112.  Title 40 is titled “Public Buildings, Property and Works”.  § 3112 is titled “Federal Jurisdiction”.  So, here is what the Statute says:

(a) Exclusive Jurisdiction Not Required.  – It is not required that the Federal Government obtain exclusive jurisdiction in the United States over land or an interest in land it acquires.

Well, that is certainly well established, by now.

(b) Acquisition and Acceptance of Jurisdiction.  – When the head of a department, agency, or independent establishment of the Government, or other authorized officer of the department, agency, or independent establishment, considers it desirable, that individual may accept or secure, from the State in which land or an interest in land that is under the immediate jurisdiction, custody, or control of the individual is situated, consent to, or cession of, any jurisdiction over the land or interest not previously obtained.  The individual shall indicate acceptance of jurisdiction on behalf of the Government by filing a notice of acceptance with the Governor of the State or in another manner prescribed by the laws of the State where the land is situated.

So, they can obtain jurisdiction, though if offered by the State, they still have to file a written notice of acceptance.  In the current matter, the government has not proffered any evidence of anything beyond ownership, but more on this, below.

(c) Presumption.  – It is conclusively presumed that jurisdiction has not been accepted until the Government accepts jurisdiction over land as provided in this section.

And, that pretty much sums up the absence of federal jurisdiction in the current matter.  Put simply, there is no federal jurisdiction at the Malheur National Wildlife Refuge, the alleged scene of most of the alleged crimes.

But let’s look at what the government, rather gratuitously, provided in implying their right to pursue criminal charges that if true, as alleged, would be under the jurisdiction of the State or County, not the Federal District Court in Portland.  The Government filed a “Motion for Judicial Notice Regarding Ownership of the MNWR Headquarters Area“.  This Motion was supported by another filing, the “Declaration of Charles Houghten“, providing the documentation of Ownership.

However, Shawna Cox saw through this ploy.  She did not dispute the Ownership of the land, though she filed her “Response to and Motion for Judicial Notice Regarding Ownership & Ceding of the MNWR Headquarters Area“.  In her Motion, she stipulated as to federal ownership and asked the Court to take Judicial Notice that the land had not been ceded to the federal government.

So, it is back in the lap of the federal government to prove that they have jurisdiction over criminal matters at the MNWR, in Harney County, Oregon.

So, let’s do a count down on the Counts:

Count 1 – Conspiracy to Impede Officers of the United States – 18 U.S.C. § 372

This is the single charge that may have merit, though that will be the topic of an upcoming article, and it has to do with a law enacted during the Civil War and the definition of the terms used.

Count 2 – Possession of Firearms and Dangerous Weapons in Federal Facilities – 18 U.S.C. §§ 930(b) and 2)

This was discussed in “Firearms Not Allowed“, where the government’s own brochure accedes to State law.

Count 3 – Use and Carry of a Firearm in Relation to a Crime of Violence – 18 U.S.C. §§ 924(c)(l)(A) and 2)

This was Dismissed, as there was no violence on which to base the charge.

Count 4 – Theft of Government Property – 18 U.S.C. § 641 (Medenbach)

Count 5 – Theft of Government Property – 18 U.S.C. § 641 (Ritzheimer & R. Bundy)

Count 6 – Depredation of Government Property – 18 U.S.C. §§ 1361 and 2

These Counts (4, 5, &6) are purely jurisdictional, as was explained in “It’s a Matter of Jurisdiction“.  As demonstrated in that article, those who rubbed shoulders with the Founders realized that to have criminal jurisdiction, the land upon which the property was located and crime occurred had to have been ceded, along with jurisdiction, for it to be a federal crime.

So, at this point, with the exception of Count 1, Reason, Common Sense, and Justice dictate that the government is simply wasting tax dollars and has denied the Liberty, which they are supposed to protect, of all 26 of the Defendants.

How has this country come to the point that the federal government can run roughshod over the rights of the States, and more importantly, the rights of the People?

3 Comments

  1. Monty Jensen says:

    Has our Congress effectively bypassed the separation of powers of the constitution by creation of the United States District Courts with the exception of The District Court of Hawaii and the District of Columbia? Are these Article IV administrative courts part of the administrative branch under the DOJ?

    USC Title 28 Chapter 5 Section 85 Jurisdiction only lists civil jurisdiction.

    Article III courts are courts of limited jurisdiction. Those limits are defined in Article III and do not include criminal and civil trials.

    The Article IV district courts are courts of general jurisdiction. Nowhere in the constitution are they given authority to take jurisdiction in Oregon and Nevada.

    I suspect the Congress created these courts specifically to bypass the separation of powers. Not being under the judicial branch, they fall under the DOJ in the administrative branch. That explains why no one gets a fair trial and the constitution cannot be discussed or ruled upon.

    Further investigation will show their jurisdiction only extends to the District of Columbia, the Commonwealth of Puerto Rico, a territory and the insular possessions.

    All “United States District Courts” are territorial and/or “legislative courts” that may only operate as administrative rather than Constitutional or Common Law courts. Nearly all of the courts in our federal system are “United States District Courts”. In fact, the only Constitutional or common law district courts in the country United States exist in Hawaii and the District of Columbia. This is confirmed by looking at the Notes under 28 U.S.C. §88, which says for the District of Columbia:

    “It is consonant with the ruling of the Supreme Court in O’Donoghue v. United States, 1933, 53 S.Ct. 740, 289 U.S. 516, 77 L.Ed. 1356, that the (then called) Supreme Court and Court of Appeals of the District of Columbia are constitutional courts of the United States, ordained and established under article III of the Constitution, Congress enacted that the Court of Appeals ”shall hereafter be known as the United States Court of Appeals for the District of Columbia”

    The Notes section under 28 U.S.C. §91for Hawaii say the following:

    “Section 9(a) of Pub. L. 86-3 provided that: ”The United States District Court for the District of Hawaii established by and existing under title 28 of the United States Code shall thence forth be a court of the United States with judicial power derived from article III, section 1, of the Constitution of the United States”

    All district courts other than Hawaii and the District of Columbia are, by implication administrative courts, which means that they are territorial courts which may not rule on constitutional rights. Even courts that are Art. III can only exercise that power when the judges are also Article III judges, which few judges are. There is a great deal of confusion over this issue within the legal profession and few lawyers fully understand the implications of this distinction in our experience.

    All of the territorial “United States District Courts” are listed in Title 28, Part I, Chapter 5. The notes at the beginning of this chapter indicate the following:

    28 U.S. Code § 88 – District of Columbia

    Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
    US Code
    Notes
    Historical and Revision Notes
    This section expressly makes the District of Columbia a judicial district of the United States.

    Section 41 of this title also makes the District of Columbia a judicial circuit of the United States.

    Section 11–305 of the District of Columbia Code, 1940 ed., provides that the District Court of the United States for the District of Columbia shall possess the same powers and exercise the same jurisdiction as the district courts of the United States, and shall be deemed a court of the United States.

    It is consonant with the ruling of the Supreme Court in O’Donoghue v. United States, 1933, 53 S.Ct. 740, 289 U.S. 516, 77 L.Ed. 1356, that the (then called) Supreme Court and Court of Appeals of the District of Columbia are constitutional courts of the United States, ordained and established under article III of the Constitution, Congress enacted that the Court of Appeals “shall hereafter be known as the United States Court of Appeals for the District of Columbia” (Act of June 7, 1934, 48 Stat. 926); and also changed the name of the Supreme Court of the District of Columbia to “district court of the United States for the District of Columbia” (Act of June 25, 1936, 49 Stat. 1921). In Federal Trade Commission v. Klesner, 1927, 47 S.Ct. 557, 274 U.S. 145, 71 L.Ed. 972, the Supreme Court ruled:

    “* * * The parallelism between the Supreme Court of the District [of Columbia] and the Court of Appeals of the District [of Columbia], on the one hand, and the district courts of the United States and the circuit courts of appeals, on the other, in the consideration and disposition of cases involving what among the States would be regarded as within Federal jurisdiction, is complete.” See also to the same effect Clairborne-Annapolis Ferry Company v. United States, 1932, 52 S.Ct. 440, 285 U.S. 382, 76 L.Ed. 808.
    28 U.S. Code § 91 – Hawaii

    Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
    US Code
    Notes
    Historical and Revision Notes
    Court of the United States; District Judges
    Pub. L. 86–3, § 9(a), Mar. 18, 1959, 73 Stat. 8, provided that:

    “The United States District Court for the District of Hawaii established by and existing under title 28 of the United States Code shall thence forth be a court of the United States with judicial power derived from article III, section 1, of the Constitution of the United States: Provided, however, That the terms of office of the district judges for the district of Hawaii then in office shall terminate upon the effective date of this section and the President, pursuant to sections 133 and 134 of title 28, United States Code, as amended by this Act, shall appoint, by and with the advice and consent of the Senate, two district judges for the said district who shall hold office during good behavior.”
    Section 9 of Pub. L. 86–3 provided in part that subsec. (a) of that section should be effective upon the admission of the State of Hawaii into the Union.

    28 U.S. Code § 108 – Nevada

    Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
    US Code
    Notes
    Historical and Revision Notes
    Based on title 28, U.S.C., 1940 ed., § 174 (Mar. 3, 1911, ch. 231, § 94, 36 Stat. 1118; June 24, 1930, ch. 595, 46 Stat. 806; Nov. 15, 1945, ch. 482, 59 Stat. 582).

    Changes in arrangement and phraseology were made.
    Amendments
    1990—Pub. L. 101–650 substituted “, Reno, Ely, and Lovelock” for “and Reno”.

    28 U.S. Code § 117 – Oregon

    Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
    US Code
    Notes
    Historical and Revision Notes
    Based on title 28, U.S.C., 1940 ed., § 183 (Mar. 3, 1911, ch. 231, § 102, 36 Stat. 1122; Nov. 6, 1945, ch. 447, 59 Stat. 555).

    Provisions relating to appointment and residence of deputies by the clerk and marshal, and maintenance of offices by said officers, were omitted as covered by sections 541 [see 561], 542 [see 561], and 751 of this title.

    Changes in arrangement and phraseology were made.
    Amendments
    2000—Pub. L. 106–518 substituted “Eugene or Springfield” for “Eugene”.

    1970—Pub. L. 91–272 provided for holding court at Coquille.

    1950—Act Aug. 3, 1950, provided for holding court at Eugene.

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