From the July 2009 Idaho Observer:

The myth of jurisdiction

By Hari Heath

There is perhaps no other word that simultaneously evokes such certainty, ambiguity and great mystery than that mythical linguistic construct, "jurisdiction." Judges, prosecutors and even legislators often claim to "have" jurisdiction, yet whenever it is convenient to avoid a sticky subject, they claim they don’t "have" jurisdiction. Government entities go to great lengths to avoid or create jurisdiction. Jurisdiction is an essential, foundational component to every legal case, but what is this "jurisdiction?" Who wields it, where does it come from, and where does it go when they are done with it?

In a legal sense, jurisdiction of a court begins when a case is filed with a court, either civil or criminal. In a criminal case, jurisdiction is considered to be "established" over a person when they make a first "appearance" or show up for an arraignment. Civil jurisdiction is established by filing, answering, or failing to answer, a complaint. These are the modern, conventional applications of the ever mythical and elusive jurisdiction.

The word induces a mental image of the rock solid foundation for our legal system. We toss the term around as if it has a commonly understood meaning. We take it for granted as if it is beyond question. But it is only a word.


Etymology—the study of the derivation of words—often brings to light origins and definitions quite different from modern meanings. "Jurisdiction" is formed from the conjunction of "juris" and "diction." "Juris" is Latin for of right; of law. "Diction" is the "choice or use of words in speech or writing," which comes from the Latin dicere—to say. "Dicere" is also the linguistic root of "dictate," which includes the definition, to prescribe expressly and with authority; to issue orders or commands. Dictator is derived from dictate and is defined as 1) a ruler having absolute authority and supreme jurisdiction over the government of a state; especially one who is considered tyrannical or oppressive. 2) One who dictates.

Black’s Law Dictionary tells us "jurisdiction" is "a term of comprehensive import embracing every kind of judicial action" and, "it is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties."

Alternately we might say jurisdiction is the assumption of the right to dictate what the law is; to order, prescribe, or impose "law;" to be the dictator of the law: juris-dicere—to "say" the law.

Jurisdiction is nothing more than a concept imbued with illusionary substance, formed in the mind, then made into "law" by the say so of the dictator; a myth turned into legend.

Dictionaries categorize the word "jurisdiction" as a noun. In grammar school, we learned that a noun is a "person, place or thing."

When a judge claims to have jurisdiction, does he take it off the shelf and set it on the bench next to him? If he wishes to avoid or void a case, does he put jurisdiction back in the closet and close the door? Is jurisdiction nothing more than the collective say-so of judicial officials, entombed in the great bodies of self-legislated case law? What doth constitute the substance of this great myth?

Jurisdiction and venue

Intrinsic to the concept of jurisdiction is venue, or place—the location, county, state or district in which the notion of jurisdiction is said to exist. Every court has a locus or place defined by some geographical boundary, except for certain "special" jurisdictions where the long arm of the law reaches out to the high seas, aboard aircraft, space vehicles and is "an offense by or against a national of the United States."

Limits of jurisdiction?

Federal criminal jurisdiction used to be limited to properly acquired federal property such as Washington, D.C., forts, arsenals, magazines, dockyards, other needful buildings and, of course, the high seas under admiralty jurisdiction. That was then.

With the war on drugs, wetlands, forest reserves, the tax code, the post office, homeland security, the wars on terror and everything else, federal criminal jurisdiction can shape shift into any "venue" it declares for itself. Jurisdiction and venue is just a claim backed by whatever force can be imposed to assert that claim.

Jurisdiction made from bird crap

One of the more interesting jurisdictional constructs can be found in the case of Jones vs. U.S. (137 U.S. 202). The statutory jurisdictional claim for this case can still be found in Title 18 USC, Section 7, Subsection (4): "The term ‘special maritime and territorial jurisdiction of the United States,’ as used in this title, includes…any island, rock or key containing deposits of guano, which may, at the discretion of the president, be considered as appertaining to the United States."

Guano is bird or bat crap often found near nesting sites. Guano phosphate was considered a superior fertilizer that became a mainstay of American agriculture in the mid-19th century. So how did Mr. Jones get wrapped up in a jurisdiction based on, literally, a million tons of bird crap?

Guano Islands

Congress passed the Guano Islands Act of August 18, 1856 and, in 1857, "Peter Duncan, a citizen of the United States…did discover a deposit of guano on an island or key in the Caribbean Sea, not within the lawful jurisdiction of any other government and not occupied by the citizens of any other government, which said island or key is called Navassa…The said island of Navassa is about two miles in length and a mile and a half in width, apparently of volcanic origin, and elevated about three hundred feet above the surface of the sea, presenting a rocky, perpendicular cliff or shore on all sides, except for a small space to the north. It is covered with small shrubs upon the surface, beneath which is a deposit of phosphatic guano, varying in depth from one to six feet, and estimated in quantity at one million tons."

Duncan gave notice to the Secretary of State of the United States, following the procedures and guidelines of the Guano Islands Act, which were similar to filing a mining claim. Duncan assigned or sold his interest to Edward Cooper who posted the required bonds. Cooper’s interest was assigned to the Navassa Phosphate Company, which began mining there.

A riot

Some 30 years later, September 14, 1889, to be exact, there were 137 "colored" laborers and 11 white officers or superintendents, appointed by the company, "employed in digging the phosphate or guano and transporting by railroad propelled by man power and handling the phosphate or guano found on the island and putting it on shipboard, which digging and mining is carried on by digging and blasting with dynamite and working with picks and other iron tools…"

The contract under which the "colored laborers" were working included the provisions that they "devote their whole time and services in such labor as they may be directed to do so by said Navassa Phosphate Company, or its agents…should they fail to obey the orders and instructions…or refuse at any time to labor, they shall forfeit all claim for wages and compensation which may be due them."

The contract indentured the laborers for up to 15 months of work on the island. If they were not competent to perform their duties they had to pay for their own passage back and would receive no wages.

The Jones case doesn’t describe all the details, but on that day a riot broke out, "in which a large number of laborers was engaged against the officers." Mr. Jones, a 22-year-old colored laborer who signed on for eight dollars a month, murdered Thomas Foster, a white officer, "by giving him three mortal blows with an axe."

Admiralty jurisdiction

Jones was transported to Maryland, "the district into which the offender is first brought," tried in the District Court of the United States for the District of Maryland by a jury, found guilty and sentenced to death. The trial was held in admiralty jurisdiction which, the Supreme Court said, "does not assume to extend the admiralty jurisdiction over land, but merely extends the provisions of the statutes of the United States for the punishment of offences on the high seas to like offences upon guano islands which the President has determined should be considered as appertaining to the United States."

Remember the root meaning of "diction" is "to say." Here the Supreme Court and the president have both had their "say" in the matter.

The government presented its case against Jones, showing Duncan’s claim of discovery in compliance with the Guano Islands Act, the subsequent assignment if his interest eventually to the Navassa Phosphate Company, diplomatic negotiations with Haiti, which claimed an interest in Navassa, and even an order by the president to send the Navy to protect the mining and shipping of guano from Navassa, showing the president considered Navassa as "appertaining to the United States."

The breach

Apparently, Jones’ main argument in his defense came from the Guano Islands Act’s requirement, "to deliver the said guano to citizens of the United States, for the purpose of being used therein, and to none others."

At trial, Jones offered evidence, "that on April 16, 1889, a foreign vessel was loading at Navassa with a cargo of lime, intended for the use of persons other than the citizens of the United States," a breach of the Guano Islands Act and the bonds paid to secure Navassa as "appertaining to the United States."

Jones’ defensive claim was "jurisdictional," in that this breach of the Act terminated U.S. admiralty jurisdiction over him. The trial court excluded Jones’ evidence as immaterial since, of course, they assumed jurisdiction—the power "to say" what the law is.

The Supreme Court’s answer also exercised the power "to say" what the law is; "whenever the breach took place, it affected the private rights only of the delinquent, and did not impair the dominion of the United States or the jurisdiction of their courts."


Guantanamo Bay, Cuba, more affectionately known as "Gitmo," is another unique enclave of jurisdiction and venue in the Caribbean. Why have the alleged (but not tried) terrorists been kept there indefinitely, even under the changeling president’s "new" administration? It is a jurisdictional no man’s land. The U. S. doesn’t own Gitmo because it is on Cuban soil and void of treaty or other lawful means of acquisition. Cuba doesn’t own it because the U.S. is a formidable occupational force that its government has yet to repel.

It is the perfect "jurisdiction" to house prisoners of war, that aren’t called prisoners of war, because they were captured in a war, that isn’t really a war, in violation of the laws of war and the Geneva Conventions. The perpetrators of this unjust incarceration would be liable for war crimes, under international law, if the "war on terror" was a genuine war and the captives were prisoners of war. By detaining the prisoners in a venue that has no jurisdiction they can be kept indefinitely, without recourse or due process, because no one can "say what the law is" in a place that does not belong to Cuba, nor the U.S.—Gitmo, in a legal sense, is "no man’s land."

The fiction of jurisdiction

Jurisdiction should be better known as jurisfiction. The law is whatever a man or group of men say it is, after assuming the dictatorial authority of law. These same dictators have "legislated" for themselves the doctrine of "Absolute Immunity." By their own decree, judges and prosecutors are absolutely immune from any liability for their "judicial" acts. Their "jurisdiction" is what they say it is because men with guns and government paychecks follow the orders and commands of the jurisdictators. These swarms of officers are apparently incapable of reading the constitution they swore an oath to support and have a greater allegiance to the mythical commands of the self-declared-immune judiciary and their claim of "jurisdiction."

Unjust incarceration

Over two million Americans are presently in prison. At least one million of them are incarcerated unlawfully and unjustly, because several thousand judges acted in concert with an army of prosecutors to put them there. Many of them were "convicted" without bona fide due process, in the absence of actual laws, or of laws which the legislature was not authorized to enact.

Jurisdiction is a myth, but not for the million plus Americans who suffer an unjust incarceration in cold steel and concrete. They suffer because you believe you vote for the scoundrel of your choice; because you pay your taxes; because you accept the fictitious notion of jurisdiction as if it were carved in granite.

Jurisdiction is a million tons of bird crap.

Postscript: Navassa still U.S. possession

This photo was taken during the riot or rebellion at Navassa. The result was a many-hour conflict in which several "colored people" and 15 white bosses were killed; the navy was called in to end the uprising.

Henry Jones and two other defendants were sentenced to death for the murder of some of the white bosses. Jones’ claim that the bird poop mining operation was not conducted in accordance with the Guano Islands Act was rejected by the U.S. Supreme Court and his conviction—and death sentence—was upheld. Jones and the others had their sentences commuted to imprisonment by President Benjamin Harrison in 1891.

Mining operations in Navassa, an island 40 miles off the coast of Haiti, ceased in 1901. Since then, the island has had an interesting "jurisdictional" history considering it is not populated by people. Navassa is still maintained as an "insular possession" of the U.S. and the U.S. Fish & Wildlife Service currently has administrative responsibility of the island which is inhabited by booby birds.

There is still a lot of bird crap on Navassa and Charles Roby from California claims to have bought the island from its titled owners, heirs to the Navassa Phosphate Company. But so far, the U.S. will not let Roby exercise personal jurisdiction on Navassa per his property title.