Oregon Standoff Trial — Serious Questions of Subject Matter Jurisdiction

For “live” regular commentary and coverage of the Oregon Standoff Trial, follow this LINK.

sodhouse-lane-aerial-1Over the course of the last few days, one of the most fundamental issues in the Oregon Standoff case has finally nosed its way to the front of the line.  On Monday evening, the very eve of trial, prior to opening statements starting the next day, Ammon Bundy’s attorneys filed an emergency motion once again questioning the court’s subject matter jurisdiction in this case, based on new information which had just barely come forward, including the government’s own motion for judicial notice regarding federal ownership of the property on which the MNWR refuge headquarters was located, eolc-deed-1as well as a white paper which had been written and submitted by Dr. Angus McIntosh and Dr. Michael Coffman addressing that issue. mcintosh-coffman-white-paper The government had claimed that it had always owned the property as part of the original Refuge set-aside by President Roosevelt in 1908. But once the title history, and title itself, were seriously questioned, the government had to back-track. As it turns out, contrary to its previous representations, the government does not have a continuous chain of ownership title and exclusive subject matter jurisdiction with respect to the property in question.  As it turns out, the section where MNWR headquarters buildings are located had originally been homesteaded, and was in private ownership through a series of private owners until at least 1935, when it was reacquired from the Eastern Oregon Live Stock Company, based on applicable congressional acts at the time which reserved state jurisdiction.

The government produced this deed, seeking to support its case by attempting to show that it does in fact  own at least the surface title at this point. mnwr-s-35-eolc-deed-1  But this deed raises additional jurisdictional questions, and provides fertile ground for Ammon Bundy’s Adverse Possession arguments.  Rather than stay the proceedings at this point, however, the court is giving the the government an opportunity to respond, and has taken the emergency subject matter jurisdiction motion under advisement, to be ruled on at a later date, probably when the government rests its case, based on the evidence that has been presented up to that point.

caution-1For additional commentary, Bundy supporter and activist Gary Hunt has written a thought-provoking piece addressing this issue:

According to Hunt, “Thomas Jefferson had proposed an ordinance to deal with the lands won along with independence from Britain in 1784, and not belonging to any State, any lands that might be relinquished when considered to have been granted by Royal Charter.  The Continental Congress ratified the Northwest Ordinance of 1787 on July 13, 1787.  The First Congress under the newly ratified Constitution, which met from March 4, 1789, to March 4, 1791, then reaffirmed that same ordinance.  This slightly revised version reaffirmed on July 13, 1789, and is known as the Northwest Ordinance of 1789.

The Fourth Article, unchanged in the two versions, reads, in part:

Article the Fourth.  The said territory, and the States which may be formed therein, shall forever remain a part of this Confederacy of the United States of America…  The legislatures of those districts or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers.  No tax shall be imposed on lands the property of the United States; and, in no case, shall nonresident proprietors be taxed higher than residents.

Note that “primary disposal” seems to be the objective of holding the land.  That disposal would serve two very significant purposes in the creation of a nation that would grow from those first thirteen states.  First, it would raise revenue for the payment of the debt incurred because of the War of Independence, and it continued to provide revenue for the fledgling nation.

Second, it would provide land for people to populate the barren regions, first, across the Allegheny Mountains, then on to the Mississippi River, next to the Rocky Mountains, and finally to the Pacific Ocean.  With each of these principal movements, as those people moved westward, the resources of the most resource rich country in the world would develop into the greatest nation in the world.

With the ratification of the Constitution, we have two provisions that deal with land owned by the United States.  First is Article I, § 8, clause 17, which we have heard much of recently.  It read:

The Congress shall have the Power…  [t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

Now, a question arises as to the “needful Buildings” portion, which will be addressed later.

Next, we have Article IV, § 3, clause 2, which reads:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Clearly, as we can see from the historical record, Congress can own land, which has been referred to as “public lands”, from records predating the Constitution, reaffirmed by the first Congress, and embodied in the Constitution, itself.

The next question is whether Congress had any prior ownership of the lands in question.  Here, we have three possibilities.  First, the lands acquired by the Treaty of Paris (1783) in which Britain gave up her claims to the lands east of the Ohio River (the Northwest Territories), and other lands ceded by Virginia (believing that she owned land to the Pacific Ocean), and other adjustments to final boundaries of the colonies.  These lands by treaty would also include lands acquired by a subsequent treaty with Britain, dealing primarily with Oregon and Washington.  Next, we have lands acquired by conquest and subsequent treaty.  This would include the Hidalgo Treaty, after the Mexican-American War (1846-1848), and subsequent treaties relinquishing Mexico’s claims to lands otherwise not in conflict and establishing our southern border.  Third, we have the lands acquired by purchase.  Primarily, the Louisiana Purchase of 1803.  So, by conquest, by treaty, and by purchase, the government owned vast amounts of land.

In all of these instances, the land acquired could not go to a State recognized by the Congress, as the Northwest Ordinance defined the procedure by which a territory could become a State.  Therefore, the only viable conclusion is that these lands would fall under the Article IV.  § 3, clause 2 provision of “all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”.  This would apply until the land was “disposed of”, which provision is included in the Northwest Ordinance (Fourth Article).

Finally, we come to the Admission of Oregon, as a State of the Union.  Congress approved the Oregon Admission Acts on February 14, 1859.  There were some propositions in the Acts, and the Legislative Assembly of the State of Oregon approved those propositions on June 3, 1859.  The significant article in the Acts is the fourth.  It deals with land, and reads, in part:

First, That sections numbered sixteen and thirty-six in every township of public lands in said State, and where either of said sections, or any part thereof, has been sold or otherwise been disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said State for the use of schools. Second, That seventy-two sections of land shall be set apart and reserved for the use and support of a State university, to be selected by the governor of said State, subject to the approval of the Commissioner of the General Land-Office, and to be appropriated and applied in such manner as the legislature of said State may prescribe for the purpose aforesaid, but for no other purpose.  Third, That ten entire sections of land, to be selected by the governor of said State, in legal subdivisions, shall be granted to said State for the purpose of completing the public buildings, or for the erection of others at the seat of government, under the direction of the legislature thereof.  Fourth, That all salt springs within said State, not exceeding twelve in number, with six sections of land adjoining, or as contiguous as may be to each, shall be granted to said State for its use, the same to be selected by the governor thereof within one year after the admission of said State, and when so selected, to be used or disposed of on such terms, conditions, and regulations as the legislature shall direct: Provided, That no salt spring or land, the right whereof is now vested in any individual or individuals, or which may be hereafter confirmed or adjudged to any individual or individuals, shall by this article be granted to said State. Fifth, That five per centum of the net proceeds of sales of all public lands lying within said State which shall be sold by Congress after the admission of said State into the Union, after deducting all the expenses incident to the same, shall be paid to said State, for the purpose of making public roads and internal improvements, as the legislature shall direct: Provided, That the foregoing propositions, hereinbefore offered, are on the condition that the people of Oregon shall provide by an ordinance, irrevocable without the consent of the United States,that said State shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof; and that in no case shall non-resident proprietors be taxed higher than residents. Sixth, And that the said State shall never tax the lands or the property of the United States in said State: Provided, however, That in case any of the lands herein granted to the State of Oregon have heretofore been confirmed to the Territory of Oregon for the purposes specified in this act, the amount so confirmed shall be deducted from the quantity specified in this act.

So, once again, we see the phrase “primary disposal”.  This “disposal”, from the Northwest Ordinance of 1787 to the admission of Oregon in 1859, makes clear that the “public lands” were to be disposed of.  It makes no mention of acquisition of lands, except indirectly in Article I, § 8, clause 17, and it appears that there were only certain purposes for which the land could be acquired, and each is to sustain constructions serving to provide for the required obligations of the government; “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”.  Though the ambiguity of what needful may have been intended to refer to, the noun, “Buildings”, is without question.  All of the itemized objects require construction, and, consequently, the provision is to allow government facilities to be established to serve the needs of the government, not of birds, tortoises, or other critters that the Bible says are put on this Earth for our use.

We also see that a portion of the “proceeds” of the sale of the public would go to the State to provide “for the purpose of making public roads and internal improvement.”  Those improvements would provide both roads and canals for water, both to help with the development of the State.  This would satisfy the intended purpose of creating growth of the State and the Nation.

Understand that each state, within its constitution, may have reserved that state certain rights with regards to land, as explained in the Oregon Admission Acts, but the federal government has no such constitutional authority.

In 1825, just 46 years after the formation of the current government, Congress, in order to have the lawful authority to charge people with the destruction of government property, enacted the “Act of 1825”.  The Act sets the requirement for extending jurisdiction created under Article I, § 8, clause 17:

An Act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes.  (March 3, 1825)

“That if any person or persons, within any fort, dock-yard, navy-yard, arsenal, armory, or magazine, the site whereof is ceded to, and under the jurisdiction of the United States, or on a site of any lighthouse, or other needful building belonging to the United States, the sight whereof is ceded to them [United States], and under their jurisdiction, as aforesaid, shall, willfully…”

Now, this Act brings to light what was intended, with regard to federal jurisdiction, outside of Washington, D.C.  If that land has been disposed of, it has left the realm of “needful Rules and Regulations”, and entered into the jurisdiction of the State in which the land lies.  It is, forever, outside of federal jurisdiction — UNLESS it is brought back into federal jurisdiction in accordance with the intent of Article I, § 8, clause 17.  Now, the application of that intent is clearly laid out in the Act of 1825.  That “under their jurisdiction” refers to the State ceding to the federal government either limited or complete jurisdiction.  Simply because the government bought the land does not create “jurisdiction”, or the provision would be without meaning.

A “Chain of Title” was secured for the property upon which the buildings sit at the Refuge.  Based upon that document, an analysis of the documentation provided resulted in determining that, in fact, certain land that had left government ownership, and were subsequently deeded back to the United States of America, though no proof of ceding was shown in the Chain of Title.

sodhouse-lane-map-1The government ownership is contained within the red lined area on the left map.  The Refuge Buildings can be seen above the words “Sodhouse Lane” on the right map

This coincided with the government production of Proof of Ownership in their “Motion for Judicial Notice“.  The results, as far as ownership by the United States of America are identical.  And, as in the Chain of Title, there is no indication that there was any ceding of land or jurisdiction, back to the United States, in either record.  This being the land where the Malheur National Wildlife Refuge headquarters are situated, and the location of the alleged crimes by the defendants.

However, that ownership carries no jurisdictional authority.  That remains with the State, unless the government has had that jurisdiction ceded to them, and away from the State, either fully or partially.  And lawfully, the federal government has no more authority than you would, if you owned the land.  If there was an alleged criminal act, you would have to file a complaint with Harney County, and it would be dealt with under state law.

Then, yesterday, September 12, Shawna Cox filed her response, in which she also sought judicial notice that Oregon never ceded the land or the jurisdiction back to the federal government.  Now, this creates a bit of a dilemma in that if the Court takes judicial notice of the ownership, absent proof to the contrary, it must also take notice of the absence of federal jurisdiction.  This will significantly change the playing field.

This article can be found on line at
Burns Chronicles No 27 – Public Lands – Part 1 – It’s a Matter of Jurisdiction