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Jurisdiction

How To Defend Rural America


by Kirk F. MacKenzie
Founder of Defend Rural America
TM
October 22, 2013
www.DefendRuralAmerica.com/DRA/Jurisdiction.html
Level I. Assert Local Jurisdiction
Overview
Our forests, air quality, water quality, food quality,
recreational use of public lands, energy production,
families, communities, counties, jobs, and prosperity
are systematically being destroyed. The people closest
to the problems!those that actually live and work on
the land!are acutely aware of this, yet increasingly
have little say in the matter. The solution is to
understand, reinvigorate, and apply jurisdiction, as
defined by the Constitution.
The authority to protect person and property falls on
the states, not the federal government.
...within any state of this Union the preservation of
the peace and the protection of person and property
are the functions of the state government, and are
not part of the primary duty, at least, of the nation.
! Caha v. United States, 152 U.S. 211, 215 (1894)
Where there is a delegated authority, there is also a
duty. The simplest exercise of jurisdiction is for
counties to exercise their authority to defend the health,
safety, and welfare of their constituents. This authority
extends into the so-called national forests.
Our elected agents, state and local representatives owe
their highest and only loyalty to their constituents.
They have no duty, nor authority, to enforce federal
municipal laws; represent the interests of special
interest groups or stakeholders; or to represent the
interests of owls, frogs, and toads.
1962 Eisenhower Report
The INVENTORY REPORT ON JURISDICTIONAL
STATUS OF FEDERAL AREAS WITHIN THE STATES,
As of June 30, 1962!also known as the Eisenhower
Report!is sufficient to confirm state jurisdiction over
lands commonly, but wrongly called federal lands. A
full copy can be found here. This study was undertaken
and completed after most or all of the enabling acts.
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Every federal agency was given the task to list every
property in these United States!by county and
state!to which it claimed some sort of authority.
Federal authority over each property was then
classified into one of five categories:

Category 1 Exclusive federal legislative


authority. I call these lands the Federal Zone.

Categories 2 and 3 Mixed federal and state


legislative authority

Category 4 Defined below.

Category 5 Those that could not be classified.


Category 4 was entitled Proprietorial Interest Only.
Here is the definition. In other words, the States hold
exclusive legislative authority over Category 4 lands.
...the Federal Government has acquired some right
to an area in a State, but has not obtained any
measure of the States authority over the area.
According to a summary chart included in the report,
728,489,393.3 (or 95%) of the total 770,735,115.3
acres considered fall into the proprietorial
jurisdiction category. They are under state jurisdiction.
They are not federally-owned nor under federal
legislative authority.
The reports authors, with the concurrence of President
Dwight Eisenhower, concluded and recommended that
federal jurisdiction over our lands should be very
limited, consistent with the Constitution.
3.2 With respect to the large bulk of federally
owned or operated real property in the several
States and outside of the District of Columbia it is
desirable that the Federal Government not receive,
or retain, any measure whatever of legislative
jurisdiction, but that it hold the installations and
areas in a proprietorial interest status only, with
legislative jurisdiction remaining in the several
States.
These Maps AreWrong & Misleading
The following maps use red coloring to indicate lands
labeled, incorrectly, as federal lands. These maps are
all wrong, and highly misleading. Only 5% of the lands
so designated as under federal legislative authority.
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Apache County, Arizona
Provides Further Proof
THIS IS THE ACTUAL STORY OF A COUNTY IN
ARIZONA THAT USED ITS KNOWLEDGE OF
JURISDICTION TO PROTECT ITS COMMUNITIES.
ACTING ON LOCAL JURISDICTION
Doyel Shamley and others uncovered, studied, and
acted upon the information they learned about federal
jurisdiction. A resident of Apache County, Arizona,
Shamley was able to get his county to pass two
resolutions in which his county asserted its
Constitutional right to start managing the forests in its
area.
RESOLUTIONS
In its first resolution, the Apache County Board of
Supervisors asserted the Countys exclusive authority
over certain roads, rights-of-way and routes of travel
on lands managed by the U.S. Forest Service or Bureau
of Land Management. Here are a few excerpts:
NOW THEREFORE, hereby be it resolved that
The Board of Supervisors of Apache County hereby
asserts its inherent right to control and manage the
roads, rights-of-way and routes of travel located
within the United States Forest Service land and
Bureau of Land Management land located within
the boundaries of Apache County but not located on
any nationally recognized Indian reservation, tribal
trust land, or otherwise located on Indian Country;
and ...
BE IT FUTHER RESOLVED that any existing
physical obstructions, gates or other impediments
on any roads, rights-of-way or routes of travel
located on National Forest Service or Bureau of
Land Management lands be immediately removed.
The Apache County Sheriff is directed to ensure the
removal of such obstructions or to execute such
removals at the expense of the persons or agencies
responsible for their placement or maintenance.
Placing or maintaining any unauthorized physical
obstruction, gate or other impediment on, in or
around any road, route of travel or right-of way in
Apache County as described herein so as to prevent
or impede the free use of that road, route of travel
or right-of-way is hereby designated a Class Two
Misdemeanor and punishable pursuant to Title 13 of
the Arizona Revised Statutes ...
In its second resolution, the County Board of
Supervisors declared a state of emergency regarding
the federal mismanagement of the local forests, and
declared in no uncertain terms its intent to remedy
these problems with or without the federal
governments support. Here are the resolutions that
were passed:
BE IT FURTHER RESOLVED that the Board of
Supervisors of Apache County hereby formally
demands that State and Federal officials take
immediate action to eliminate hazardous conditions
in and around the communities and watersheds in
and around the Apache-Sitgreaves national Forest
and any other Federally Managed land in Apache
County, including the Wildland Urban interface
areas identified as critical in the Apache County
Community Wildfire Protection Plan; and
BE IT FURTHER RESOLVED that the Board of
Supervisors of Apache County invoking the
inherent police powers of the state hereby formally
gives notice to all relevant State and Federal
officials that pursuant to its duty outlined above,
after consulting with the State Forester and the
Regional United States Forester, taking surveys,
holding those public hearings as may be necessary
and developing a plan to mitigate the effects of the
disaster and as a county in which a disaster has been
declared, we intend to unilaterally take such actions
as are necessary to clear and thin undergrowth and
to remove or log fire-damaged trees within the area
of the disaster and to assess all attendant costs to
those agencies charged with wise management of
our forests and whose neglect has caused the
dangerous conditions therein;
BE IT FURTHER RESOLVED that this
Resolution be called immediately to the attention of
the Secretary of Agriculture, Arizona Congressional
Delegation, Governor Jan Brewer, the Arizona
Legislature and the Arizona Division of Emergency
Management, and
BE IT FURTHER RESOLVED, that the
Governor of the State of Arizona and the Arizona
Division of Emergency Management are hereby
called upon in the name of the State of Arizona to
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declare a State of Emergency and Disaster in
Apache County and its national forests effected by
severe drought conditions, high fire danger and
catastrophic losses caused by wild fires; and
BE IT FUTHER RESOLVED, that United States
Forest Service personnel are hereby called upon to
immediately respond to the communication,
consultation and coordination with, and provide
immediate notification to Apache County of all
their activities, programs, planning, NEPA
processes etc. having as their object to abate fire
and flooding dangers in Apache County; and
BE IT FUTHER RESOLVED, that the Apache
County Board of Supervisors calls upon the U.S.
Department of Agriculture, U.S. Congress, the
Arizona Legislature, and the Arizona Governor's
office to immediately provide emergency funding to
accomplish tree thinning, timber sales, dead tree
removal, fuel-load reduction and livestock grazing
to protect affected areas from catastrophic wildfire;
and
BE IT FUTHER RESOLVED that the Board of
Supervisors of Apache County calls on State and
Federal officials to immediately coordinate a
meeting to address the issues raised by this
resolution; and
BE IT FUTHER RESOLVED that the Board of
Supervisors of Apache County calls upon the U.S.
Department of Agriculture and the U.S. Congress to
conduct an investigation to determine why the
requirements of County, State and Federal
ordinances, laws and regulations are not being
routinely followed in relation to public safety,
recreation, wildfire and economic issues of Apache
County forest lands and other federally managed
lands.
SUCCESS!!!
The County was not bluffing. It acted upon its
resolutions. Here are information and photos about the
first project, and a related press release. The program
was a huge success, one in which the entire community
participated and benefitted. The number of sawmills,
for example, increased from zero to six. A second,
much larger project is underway.
Doyel Shamley and others subsequently testified
before the House Natural Resources Committee about
the Apache County story. The committee lauded the
plan and held it up as the model for other counties and
states to follow.
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Level II. Challenge Federal Jurisdiction
The counties have jurisdiction over so-called federal
lands. When jurisdiction, then, does the federal
government have? Answer: Far less than we have been
led to believe. Hold on to your seats, because this is
where things get interesting.
Sovereignty
We start at the beginning. For nearly all of mans
existence, the People have been made to be serfs or
slaves to one master or another. The United States,
uniquely, was founded on a very different principle,
namely, that the People are the sovereigns. Sovereignty
is the authority to which there is politically no superior.
In the United States, sovereignty resides in the
people who act through the organs established by
t he Cons t i t ut i on. The Congr es s as t he
instrumentality of sovereignty is endowed with
certain powers to be exerted on behalf of the people
in the manner and with the effect the Constitution
ordains. The Congress cannot invoke the
sovereign power of the people to override their
will as thus declared. ! Perry v. United States,
294 U.S. 330 (1935)
We Are A Federation,
Not A Nation
We The People, as sovereigns, established a
federation of States (nations, countries, if you will) that
would jointly work together on certain enumerated
matters of mutual concern. A congress was established
wherein representatives from these sovereign nations
could come together to discuss and resolve these issues.
We are a federation, not a nation. The proper use is
the United States of America are not the United
States of America is. This is a critical distinction,
because it defines the war that has been waged since
our nation was founded: decentralized government and
personal freedom, or a centralized and ultimately
totalitarian government.
The Pledge of Allegiance!that I have proudly given
since I was a child!now appears to be part of the
deception that has led us to willingly, if unwittingly,
accept subordination. It was first written in 1892 by
Francis Bellamy, an anti-capitalist socialist.
A correctly worded pledge would read:
I pledge allegiance to the flag of THESE United
States, and to the republic for which THEY stand,
one FEDERATION, under God, with liberty and
justice for all.
Government By
Consent Of The Governed
Ours is a constitutional government, that is to say, a
government of the People, by the People, and for the
People.
The Constitution For The United States was a
declaration by The People, not a two-party contract. It
did not require the consent of the federal government
which it created. We gave the federal government life,
and it has no authority or legitimacy beyond that which
we delegated to it. These limitations are affirmed by
the Ninth and Tenth articles of the Bill of Rights. We
reserved the right to amend or abolish our central
government as we deemed necessary.
Article I of the Constitution defines the legislative
authority of Congress. It is from its legislative
authority that all powers of!and limitations on!the
central government arise. The remaining articles are
there to enforce!not expand!these enumerated and
limited duties.
Articles II and III establish Executive and Judicial
branches to carry out those duties and to protect against
abuse.
Private Property
Prior to our formation, feudalism had been one of the
primary means of control. Land belonged to the king.
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His rule was enforced by a hierarchy of anointed and
self-proclaimed nobles. The People were made to be
the laborers, working the lands for the profit of the
king and his nobles.
Our nations Founding Fathers understood a freehold is
essential to being a freeman. Accordingly, the People,
as sovereigns, would own the lands, either collectively
as public land, or individually as private property.
LAND PATENTS & PRIVATE PROPERTY
The goal, therefore, was to convert public property to
debt- and lien-free private property, also called a
freehold, fee simple, or allodial title.
This was accomplished by the issuance of Land
Patents, signed by the Presidents in office at the time
of issuance. The issuance of land patents was
authorized for different purposes, such as the
Homestead Acts, the first of which was signed into law
by President Abraham Lincoln on May 20, 1862.
Under the Homestead Acts, a portion of public land
was given free to homesteaders provided they were at
least age 21, and had lived on the land, built a home,
made improvements, and farmed it for a minimum of
five years.
The enabling language in Land Patents contains words
similar or identical to the following:
Now Know Ye, that there is therefore granted by
the United States unto the said [persons name] the
track of land above described: To Have and to Hold
the said tract of land, with the appurtenances
thereof, unto the said [persons name] and to his
heirs and assigns forever: subject to [limitations, if
any].
Forever means forever. Once granted, the land was to
remain private property and never revert to government
land (i.e., the kings land).
CALIFORNIA!S CONSTITUTION
Californias Constitution affirms the right to property.
All people are by nature free and independent and
have inalienable rights. Among these are enjoying
and defending life and liberty; acquiring,
possessing, and protecting property; and pursuing
and obtaining safety, happiness, and privacy.
! California Constitution, Article I, Section I
A person may not be deprived of life, liberty, or
property without due process of law or denied equal
protection of the laws. ! California Constitution,
Article I, Section 7(a)
MARXISM
Opposition to freeholds and freemen did not end with
the Revolutionary War. Rather, the tyrants continued
their pursuit of controlling the world and everyone in it
through stealth, deception, and new forms of
weapons that would not be recognized as such.
Karl Marx, for example, published The Communist
Manifesto in 1848. He understood subjugation of the
People required centralized control of the means of
production, most notably land. According to Marx:
...the theory of the Communists may be summed
up in the single sentence: Abolition of private
property.
And the abolition of this state of things is called by
the bourgeois, abolition of individuality and
freedom! And rightly so. The abolition of bourgeois
individuality, bourgeois independence, and
bourgeois freedom is undoubtedly aimed at.
Indeed, the very first of Karl Marxs 10 planks of
Communism reads:
Abolition of property in land and application of all
rents of land to public purposes.
Thus, two very different, opposing, and irreconcilable
views continue to this day.
Forms Of Land Control
It is essential to understand and differentiate amongst
different forms of land control.
Ownership is one category. Who owns the public
lands? Answer: The People, who are the sovereigns,
not the federal government.
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Trusteeship As to the so-called federal or public lands,
the federal government is merely the trustee, not the
owner, acting on behalf of the People to dispose of
these lands, i.e., to convert them to private property.
Legislative Authority Federal legislative authority is
defined and tightly limited by Article I of the
Constitution.
Jurisdiction is a commonly misunderstood word. As
in the word jurisprudence, juris refers to the courts.
Article III of the Constitution, which created a judicial
branch, does not fully enumerate the matters over
which it has power. Accordingly, the courts had to
make this determination, and logically concluded they
have authority!jurisdiction!where government has
legislative authority.
Conversely, federal courts do not have jurisdiction over
matters the federal government does not have
legislative authority over. This is confirmed in
Supreme Court decisions.
The Court established a principle that federal
jurisdiction extends only over the areas wherein it
possesses the power of exclusive legislation, and
this is a principle incorporated into all subsequent
decisions regarding the extent of federal
jurisdiction. To hold otherwise would destroy the
purpose, intent and meaning of the entire U.S.
Constitution. ! United States v. Bevans 16 U.S.
(3Wheat.) 366 (1818)
Constitutional Constraints
The Constitution tightly constrained which lands!and
for which purposes!the federal government would
control.
ARTICLE I
Article I, Section 8, Clause 17 is one of the most
important, and most abused clauses in the Constitution.
It limits the federal governments control over our
lands to only two purposes.
1) 10 square miles for the seat of government by
cession of the respective States, and
2) the purchase of State lands, with consent of the
respective States, for the construction of facilities
essential to self-defense. These are known as federal
enclaves.
It reads as follows. The enabling language is exclusive
legislation.
The Congress shall have power...To 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.
ARTICLE IV
Article IV of the Constitution discusses the relationship
of the federal government to the States, the territories,
and U.S. possessions.
Article 4, Section 3, Clause 2 gives the central
government the authority to make needful rules and
regulations over the territories and U.S. possessions.
The territories have been converted to States on an
equal footing, and thus are not of current consideration.
The Federal Zone
A Shadow Government
FEDERAL JURISDICTION IS CONSTRAINED
Thats it. That is the full extent of the federal
governments authority over land. Collectively, these
lands will be referred to as the Federal Zone,
consisting solely of:

The District of Columbia

The federal enclaves

Puerto Rico, the Virgin Islands, Guam, and


American Samoa
Those constraints on federal power are as fundamental
to the aspirations of a free People as any other. The
federal government was not delegated unilateral
authority to take or control lands. Despite its
ambitions, the federal government is not a country unto
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itself created to conquer the sovereign States or
subjugate everyone to its rule.
The Fe de r a l Zone doe s not !a nd c a nnot
Constitutionally!-include so-called national parks,
monuments, wilderness areas, national grasslands,
wetlands, etc. None of these purposes are authorized
under the Constitution.
the United States never held any municipal
sovereignty, jurisdiction, or right of soil in and to
the territory, of which Alabama, or any of the new
states were formed; except for temporary purposes,
and to execute the trusts created ... ! Pollard v.
Hagan, 44 U.S. 212 (1845)
MUNICIPAL LAW
The term used for legislation that governs the internal
affairs of a sovereign state is called municipal law, as
contrasted to international law that governs the
interrelations of sovereign states. Federal laws that
pertain to the Federal Zone are municipal, not general
laws. Federal laws regarding the protection of person
and property are municipal laws and apply only within
the Federal Zone. In fact, all federal laws are presumed
to be municipal laws unless clearly stated otherwise.
...within any state of this Union the preservation of
the peace and the protection of person and property
are the functions of the state government, and are
not part of the primary duty, at least, of the nation.
The laws of congress in respect to those matters do
not extend into the territorial limits of the states, but
have force only in the District of Columbia, and
other places that are within the exclusive
jurisdiction of the national government.
! Caha v. United States, 152 U.S. 211, 215 (1894)
All legislation is prima facie territorial.
! American Banana v. United Fruit, 213 U.S. 347
(1909)
Legislation is presumptively territorial and
confined to limits over which the law-making
power has jurisdiction. ! NY Central Railroad v.
Chisholm, 268 U.S. 29 (1925)
...legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial
jurisdiction of the United States. ! U.S. v. Spelar,
338 U.S. 217 (1949)
THE DECEPTION
The central government, therefore, wears two hats.
Congress passes general legislation that applies to all
States. These laws must comply with the U.S.
Constitution. Congress also passes municipal
legislation that applies only to the Federal Zone.
Remarkably, the federal courts have adopted the
position that Constitutional limits do not apply to
federal municipal law!thus, creating a Federal Zone
that is not bound by the very Constitution designed to
constrain it. Houdini slipped out of his straight jacket.
By the federal governments interpretation of exclusive
l egi sl at i on t o mean free of Const i t ut i onal
constraints!an interpretation continued into the 14th
Amendment that pulled people into the Federal Zone,
not just land!a parallel but unconstrained second
nation was created.
Both nations are called the United States. That is
because the term United States is used to describe three
different things: 1) the sovereign 50 States, 2) the
Federal Zone, and 3) the combination of two.
Likewise, both sets of laws are called laws of the
United States, without making a distinction between
the two.
In fact, we have two radically different types of
legislation being intermingled by one Congress, one
President, one Federal Register, one United States
Code, one Code of Federal Regulations, one set of
courts, and one description. It is no wonder the People,
our representatives, and even government agents are
deceived into accepting federal municipal laws as the
law of the land, when they are not.
THE FEDS CANNOT EXPAND THE FEDERAL ZONE
Federal purchases of public lands from: 1) States for
non-enumerated purposes, 2) organizations such as the
Center for Biological Diversity, and 3) individuals, are
unconstitutional and therefore null and void.
Where rights secured by the Constitution are
involved, there can be no rule making or legislation
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which would abrogate them. ! Miranda v.
Arizona, 384 U.S. 436 (1966)
STATES CANNOT EXPAND THE FEDERAL ZONE
The States cannot defeat the rights of the People by
consenting to an unconstitutional expansion of federal
authority.
Where Congress exceeds its authority relative to
the States, therefore, the departure from the
constitutional plan cannot be ratified by the
consent of state officials ... The constitutional
authority of Congress cannot be expanded by the
consent of the governmental unit whose domain is
thereby narrowed, whether that unit is the Executive
Branch or the States. ! New York v. United
States, 505 U.S. 144 (1992)
Challenge Federal Jurisdiction
Federal jurisdiction over our public lands can, and
must be challenged. Once challenged, the burden lies
with the federal government to prove its jurisdiction.
Once challenged, jurisdiction cannot be assumed,
it must be proved to exist. ! Stuck v. Medical
Examiners (94 Ca2nd 751.211 P2s 389)
Jurisdiction, once challenged, cannot be assumed
and must be decided. ! Maine v. Thiboutot (100
S. Ct. 250)
Eminent Domain
Next we will discuss eminent domain. This is another
area to be challenged. Federal, State and local
governments are increasingly regulating and otherwise
controlling!even dictating!the use of private
property as if they had this right under eminent
domain. They even go so far as to assert development
of ones own land is a government-granted privilege,
not an unalienable right.
Who has eminent domain? Consider the following:
The People are the sovereigns. There is no higher
authority.
The States do not hold title. To create new States,
Congress passed a series of enabling acts. A condition
was the States clear any title they might otherwise
claim over public lands. This was to insure clear title
when Land Patents were issued by the federal
government. Thus, the States do not have title and are
not, in fact, even in the chain of title.
The Federal Government granted clear title, thereby
extinguishing any right it might otherwise claim to the
land. Forever.
Given these facts, only one conclusion is possible. The
eminent domain of private lands belongs to their
respective owners, not government. Government
confiscates private property only by threat and
coercion, not by lawful means.
Time To Unite
There are at least five different approaches being
pursued to gain control over the management of our
lands. They are divided into two categories.
CATEGORY A
Statehood is the approach being taken by Utah, and
being considered by several other States. This approach
seeks the return of public lands, the premise being
public lands belong to the federal government, not the
People of the respective States.
Separation seeks to create new states from existing
states to insure rural Americans are represented. This
approach is being pursued by certain counties in
Colorado, California, and Oregon.
Coordination is the legally-mandated requirement of
the federal government to conform its plans with those
of the local communities and counties. Those pursuing
this approach seek to force government to comply with
its own laws and regulations, such as the requirements
of the National Environmental Policy Act (NEPA).
Federal Legislation is yet another approach being
pursued. The goal is to amend the harmful and
detrimental sections of the Endangered Species Act,
Equal Access to Justice Act, Clean Air Act, Clear
Water Act, and similar legislation.
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A feature common to all of these approaches is the
need for the consent and cooperation of that which has
created our problems, namely the federal government.
CATEGORY B
Jurisdiction is the fifth approach. It is only one that fits
into Category B. Unique among the approaches, it does
not require the consent of the federal government. It
requires only that county and state representatives
understand, affirm, and uphold the Constitutional
rights of their constituents.
A UNIFIED STRATEGY
A unified approach is proposed that requires the
advocates of each approach to study and incorporate
jurisdiction as a fundamental part of their strategy.
Once this is done, I believe others will conclude, as I
have, that jurisdiction by itself accomplishes most of
what is being sought.
In Summary
Step 1: Counties have the authority and the duty to
immediately begin the proper management of the
public lands within their county borders, including the
so-called federal lands. There is no need for the
consent of state legislatures or governors, the federal
government, or the courts. There is no need to file
lawsuits, spend millions of dollars, or wait 10 years for
judicial determination. There is no need for new or
amended legislation. The only requirement is a
Constitutional County
TM
! with representatives that
understand the Constitution and uphold their oaths to
protect and defend it.
Step 2: Challenge federal jurisdiction.
Learn More
Understanding and enforcing jurisdiction is one of the
most powerful tools available to local communities to
regain a voice in their destinies. Learn all that you can
about jurisdiction, and share the information with
every one and every organization you can think of,
including your county representatives.
The Defend Rural America website
A copy of this white paper
The Constitutional County
TM

Constitutional quotes
Coordination
Endangered Species Act
Equal Access to Justice Act
Jurisdiction

Apache Countys story

Resolution No. 1

Resolution No. 2
Land Patents
Public Lands
Statehood
NOTE: Defend Rural America
TM
and Constitutional
County
TM
are trademarks of Kirk F. MacKenzie.
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