Cooperative Federalism

Jurisdiction of the U.S. Government

Cooperative Federalism

By Gerald Brown

How the Fifty States of the Union are Separate, Distinct, and Foreign Nations to the United States Government

A State is a Sovereign Nation

1. British Colonies became Sovereign Nations

Declaration of Independence – These United Colonies are … Free and Independent States; that are … absolved from all Allegiance … to the State of Great Britain.

State – An organized government with independent sovereignty … making war and entering into international relations – Blacks Law Dictionary

-‘state’ includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the territories of Alaska and Hawaii before their admission as States, and Guam, and American Samoa. – 26 CFR §31.3132

-One of the 22 territories owned by the U.S. government

‘United States’ - Territory over which sovereignty of United States extends- Black’s

- means the several states (including the territories of Alaska and Hawaii before their admission as States), the District of Columbia, …The term ‘citizen of the United States” includes a citizen of the Commonwealth of Puerto Rico or the Virgin Islands, …26 CFR § 31.3132(e)-1

‘Foreign State’ – A foreign country or nation – Black’s

- Not domestic - IRC

2. A State is altogether exempt from the jurisdiction of the Courts of the United States - Chisholm, Ex’r v. Georgia 2 Dall. 419, (1794)

3. The United States is not one nation. M’Culloch v. The State of Maryland, 17 U.S. (4 Wheat) 316 (1819)

The Formation of the Union

4. Article I- The Confederacy shall be “The United States of America”

Article II- Each State retains its Sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not delegated to the United States. Articles of Confederation – 1778

5. The Northwest Ordnance of 1787 provided for the government of the Northwest Territory. It is the model for establishing governments in 22 such territories belonging to America. A complete list is in the Domestic Mail Manual. Examples are American Samoa, Puerto Rico, and the U.S. Virgin Islands.

6. A Congress is an assembly of international envoys, commissioners, deputies, etc, from different sovereignties. It is also the legislative assembly of the United States.

7. Neither the U.S. Constitution nor the U.S. government are operational within a State. A Federal government is a government of independent and sovereign states, united by compact. Blacks Law Dictionary, 1968

8. The Constitution gave territory, the District of Columbia, that was foreign to the sovereignty of any state to the United States government. The 10th Amendment withheld authority from the United States for those things not specifically delegated to it. Constitution Article I, Section 8, clause 17

9. “Each state possesses all the powers of an independent and sovereign nation, except as they have been ceded away by the constitution. The federal government must show an express or implied authority in the charter of its appointment to give validity to its acts.” People ex rel. Attry. Gen. v. Naglee, 1 Cal 234 (1850)

10. Other federations of sovereign states: UK (Wales, Scotland and Ireland); Union of Soviet Socialist Republics (15 states such as Russia, Estonia, Latvia, and Lithuania, etc); Socialist Federal Republic of Yugoslavia (Slovenia, Croatia, Bosnia, Serbia, Montenegro and Macedonia; European Union (15 states including Germany, France, England, Ireland and Italy, etc). United Nations (180 states)

11. States of the Union are to control the United States government through Congress. Congress is not to give direction to the States except for things delegated in the Constitution. The original Constitution had Senators appointed by the State and the President elected by State Electors.

U.S. Government is Foreign to the States of the Union

12. U.S. Territories are foreign to the States of the Union. The 22 territories are under the sovereignty of the United States government. The Presidents Executive Orders only apply to the District of Columbia, the federal territories, and the enclaves within the states that have been ceded to the United States.

13. “That is the settled view of the Supreme Court that, on questions of private international law, the states are foreign to the United States would seem to be clear from the decision in State of Wisconsin v. Pelican Is. Co., 127 U.S. 265 (1888). In that case Wisconsin, … against a Louisiana corporation, brought suit in the U.S. Supreme Court. On the theory that Wisconsin was a foreign state…’By the law of England and the United States the penal laws of a country do not reach beyond its own territory, except when extended by express treaty or statute to offenses committed abroad by its own citizens; and they must be administered in its own courts only, and cannot be enforced by the court of another country.’ That case has been frequently cited by the Supreme Court and never has it been qualified in any manner… ”

“ Statutes of the several states and the United States stand upon an equal footing. They are to be enforced or not enforced according to the rule of comity in private international law and not by reason of any constitutional mandate…The Constitution does not require us to treat the United States in a matter of this nature more favorable than we do a sister state of the Union.” Robinson v. Norato, 71 R.I. 25, 643 A.2d 467, (1945)

14. The government of the United States is foreign as to the states of the union … the penal statutes of one sovereignty will not be enforced by another…Salonen v. Farley, 82 F. Supp. 25 U.S. District Court, Kentucky (1949)

15. “The United States government is a foreign corporation with respect to a state.” 19 C.J.S. Corporations §883, citing In re Merriam’s Estate, 36 N.Y. 505, 141 N.Y. 479 (1894)

16. “Township school district was not required to furnish free educational facilities for children who resided on grounds of federal Veterans Administration Hospital, which was located in the township, where jurisdiction of grounds had been ceded by the Commonwealth to the United States…Neither the parents nor the guardians of these children reside in O’Hara Township. To be a resident of a particular political subdivision of a State, a person must reside on land over which the State has jurisdiction. It has long been held that persons living on Federal reservations are not residents of the states wherein such reservations are situated…When title is acquired by purchase by consent of the legislatures of the states, the federal jurisdiction is exclusive of all state authority… Schwartz v. O’Hara Tp. School Dist. et al., 100 A.2d 621 (1953)

17. A contract between the United States and a state does not constitute a delegation of authority of the citizens of the States of the Union. Such a contract operates only on the State government and can create no obligation on the people

18. Public international law deals with the authority of the States of the Union have delegated to the United States government to represent American interests outside of American society. Private international law deals with the role of the federal government within American society where federal legislation might conflict with state law.

19. The laws enacted by Congress are domestic to the District of Columbia, the federal territories or insular Possessions, and the enclaves within a state that jurisdiction has been ceded to the United States government. Without a specific constitutional footing, the laws of Congress are foreign to the States of the Union, and … foreign law never supersedes nor takes precedence over any law that is domestic to the State.

Limited Authority of Federal Law

20. “Congress as a legislative body, exercises two species of legislative power: the one, limited as to its objects, but extending all over the Union; the other, an absolute exclusive legislative power over the District of Columbia…

It cannot be denied that the character of the jurisdiction which Congress has over the district, is widely different from that which it has over the states; over them , Congress has not exclusive jurisdiction. Its powers over the states are those only which are specifically given, …”, Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257 (1821)

21. Territorial courts are not courts in which the judicial power conferred by Article 3 can be deposited; yet they are legislative courts, created in virtue of the general right of sovereignty, which exists in the government over the territories, or the clause which enables congress to make all needful rules and regulations respecting the territory belonging to the United States.” United States v. Coe, 155 U.S. 76, 15 S.Ct. 16 (1894)

22. “Congress cannot, by legislation, enlarge the federal jurisdiction…Special provision is made in the Constitution for the cession of jurisdiction from the states … And it is only these places, or in the territories of the United States, where it can exercise a general jurisdiction…”

“All powers which pertain to Sovereignty, which have not been delegated to the federal government, belong to the States and the people.” New Orleans v. United States, 35 U.S. 662 (1836)

23. Chelsea Creek in Boston Harbor is not in the United States. Ellis v. United States, 206 U.S. 246 (1907)

24. “There could be no complete code for the entire United States, because the subjects which would be proper to be regulated be a code in the states are entirely outside the legislative authority of Congress”, Justice Walter S. Cox of the Supreme Court of the District of Columbia, 1 D.C. Code, Volume 1, p. 10, 1981 edition.

25. “Legislation of Congress… is meant to apply only within the territorial jurisdiction of the United States”, Foley Bros. v. Filardo, 336 U.S. 281 (1949)

26. “ This statute [Revenue Statute §5392 defining the crime of perjury] is one of universal application within the territorial limits of the United States…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 (1894)

27. “An act of Congress does not have sanctity of constitutional provision, … the operation of the act can affect only those subjects over which the central government has jurisdiction.” People v. Kelly, 122 P.2d 655 (1942)

28. “Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.” 40 USC §255 and 50 USC §175

29. “Because these parcels are not federally owned, the United States does not have any legislative jurisdiction. I trust that you are aware that the jurisdiction ceded under California Government Code §126 is legislative jurisdiction and that the cession process is based on Article 1, Section 8, clause 17 of the U.S. Constitution. Further, the United States must have a real property interest in the land prior to a cession. Consequently, if the United States does not have a real property interest, the State of California cannot and has not ceded legislative jurisdiction to the United States. ” James R. Frey, California State Lands Commission, 1996

Diversity of Citizenship

30. “…technically, there is no such thing as a citizen of the United States…Consequently, one who is created a citizen of the United States, is certainly not made a citizen of any particular State. It follows, that as it is only the citizens of the State who are entitled to all privileges and immunities of citizens of the several States…then a distinction both in name and privileges is made to exist between citizens of the United States ex vi termini, and citizens of the several States. To the former no privileges or immunities are granted;” Ex Parte-Frank Knowles, 5 Cal. 300 (1855)

31. “That there is a citizenship of the United States and a citizenship of a state, and the privileges and immunities of one are not the same as the other, is well established by the decisions of the courts of this country.” Tashiro v. Jordan, 201 Cal. 236 (1927)

32. “This position is that the privileges and immunities clause protects all citizens against abridgment by states of rights of national citizenship, as distinct from the fundamental or natural rights inherent in state citizenship…the Fourteenth Amendment, as well as the Thirteenth and Fifteenth were adopted to protect the negroes in their freedom. This extended the benefits of the privileges and immunities clause to other rights which are inherent in national citizenship, but denied it to those which spring form state citizenship…We think it quite clear that the right to carry out an incident to a trade, business or calling such as the deposit of money in banks is not a privilege of national citizenship.” Madden v. Kentucky, 309 U.S. 83 (1940)

33. “No white person born within the limits of the United States, and subject to their jurisdiction … owes the status of citizenship to the recent amendments to the Federal Constitution. The purpose of the Fourteenth Amendment was to confer the status of citizenship upon a class of persons domiciled within the limits of the United States, who could not be brought within the operation of the naturalization laws because they were native born without the status of citizenship.” VanValkenburg v. Brown, 43 Cal. 43 (1872)

34. The rights of citizens of the states and of citizens of the United States are each guarded by these different provisions. That these rights are separate and distinct, was held in the Slaughterhouse Cases, 83 U.S. 36, recently decided by the Supreme Court. The rights of citizens of the state, as such, are not under consideration in the fourteenth amendment. They stand as they did before the adoption of the fourteenth amendment, and are fully guaranteed by other provisions. United States v. Anthony, 24 Fed. Cas. Page 829, (1873)

35. “…the Fourteenth Amendment protects very few rights because it neither incorporates any of the Bill of Rights nor protects all rights of individual citizens. … Instead, this provision protects only those rights peculiar to being a citizen of the federal government; it does not protect those rights which relate to state citizenship.” Jones v. Temmer, 829 F.Supp. 1226 (1993)

36. “State has right to extend qualifications for state office to its citizens, even though they are not citizens of the United States… Both before and after the Fourteenth Amendment to the federal Constitution, it has not been necessary for a person to be a citizen of the United States in order to be a citizen of his state.” Crosse v. Board of Supervisors of Elections, 221 A.2d 431 (1966)

37. As of 1940, only citizens of different Territories could file suit in a District court. Citizens of a Territory could not file suit against a citizen of a State of the Union because the court did not have jurisdiction over them.

“The Act of 1940 permitted action between a citizen of Hawaii and of Puerto Rico, but not between a citizen of New York and Puerto Rico in the District Court. The 1985 Amendment extends the 1940 amendment to apply to controversies between citizens of Territories or the District of Columbia and foreign states or citizens or subjects thereof.“

“ (d) The word "States", as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico.” 28 USC 1332 (d) and Revision Notes

38. Citizens of the States of the Union are nonresident aliens to the Internal Revenue Code. Frank Brushaber was a Citizen of New York and Union Pacific was incorporated in Utah Territory. “Under the decision of the Supreme Court of the United States in the case of Brushaber v. Union Pacific Railway Co., decided January 24, 1916, It is hereby held that income accruing to nonresident aliens in the form of interest from bonds and dividends on the stock of domestic corporations is subject to the income tax imposed by the act of October 3, 1913.” Treasury Decision 2313, March 21, 1916

The Territories: The Inchoate States of the United States

39. A territory is a state as that word is used in treaties with foreign powers… The territories are inchoate states under the sovereignty of the United States. “If Congress authorizes the creation of courts and the appointment of judges for a limited time, it must act independently of the Constitution and upon territory, which is not part of the United States within the meaning of the Constitution.

“1. The District of Columbia and the territories are not states within the judicial clause of the Constitution giving jurisdiction in cases between citizens of different states.

“3. That the District of Columbia and the territories are states as that word is used in treaties…

“4. That the District of Columbia and the territories are not within the clause of the Constitution providing for the creation of a supreme court and such inferior courts as Congress may see fit to establish.”, O’Donoghue v. United States, 289 U.S. 516 (1933)

40. Under the Treaty with Spain, the territories were called “states” for the purpose of ownership, disposition, and inheritance of property. It is these inchoate states, and not the sovereign States of the Union, that are subject to the Internal Revenue Code. Congress does not include the States of the Union in the definition of “United States” or “States” in 26 USC 7701.

41. Congress deleted references to Alaska and Hawaii in Title 26 as each of these Territories was admitted into the Union, thereby recognizing that the Internal Revenue Code has no inherent operation within the States of the Union.

42. The federal codes typically refer to the “States of the United States” as places where federal law has operation. These are the territories owned by the United States, not the States of the Union.

“ (a) When used in the regulations of this subpart, the term ‘state’ includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the territories of Alaska and Hawaii before their admission as States, and Guam, and American Samoa.

“(b) When used in the regulations of this subpart, the term ‘United States’, when used in the geographical sense, means the several states (including the territories of Alaska and Hawaii before their admission as States), the District of Columbia, …The term ‘citizen of the United States” includes a citizen of the Commonwealth of Puerto Rico or the Virgin Islands, …26 CFR § 31.3132(e)-1

43. Any civil action for the collection of internal revenue taxes may be brought in the district where the liability for such tax accrues, in the district of the taxpayer's residence, or in the district where the return was filed. . 28 USC 1396 Internal revenue taxes

44. 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. 28 CFR 0.56 Exclusive or concurrent jurisdiction

45. The revenue laws are a code or system in regulation of tax assessment and collection. They relate to taxpayers, and not to nontaxpayers. The latter are without their scope.” United States Court of Claims, Economy Plumbing and Heating v. United States, 470 F.2d 585, at 589 (1972)

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