Page 1 –AMENDED MOTION TO DISMISS (ORAL ARGUMENT REQUESTED)

KENNETH MEDENBACH SWIS#794840

MCDC

11540 NE Inverness Drive

Portland, OR 97220

Phone: (503) 699-7333

FAX: (503) 345-9372

e-mail: mattschindler@comcast.net

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON 

PORTLAND DIVISION

UNITED STATES OF AMERICA,

 Plaintiff,

vs.

KENNETH MEDENBACH,

 Defendant(s).

Case No. 3:16-CR-00051-16-BR

AMENDED MOTION TO 

DISMISS (ORAL 

ARGUMENT REQUESTED)

Pro se defendant, Kenneth Medenbach, moves the Court to amend his prior 

Motion to Dismiss (ECF#505). The defendant requests oral argument. The 

requested amendments are based on newly discovered historical information and 

legal materials only recently obtained by defendant.

1. The scope of other property as that term is used in Article IV, Section 3 

has been consistently misinterpreted by the federal courts to include 

public lands.

In Article IV, Section 3, Clause 2 of the United States Constitution it states:

“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;...”

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The “needful rules and regulations respecting the Territory or other property

belonging to the United States” as it relates to territory ceded by individual states to 

the United States and for purposes of Article IV, Section 3, cl. 2, were established 

by Congress through the Land Ordinance of 1784, the Land Ordinance of 1785, the 

Northwest Ordinance of 1787, almost all Acts to Establish Territorial Governments 

in the States, the 19 Organic Acts established by Congress to manage federal lands 

and even haphazardly in the Oregon Admission Act.

As it relates to territories at the time of the ratification of the United States 

Constitution, the Northwest Ordinance of 1787, in Section 14, Article 4, states; “no 

tax shall be imposed on lands [or] the property of the United States;....”

1

The Ordinance of 1784 Resolution was put into operation by the Ordinance 

of 1785 by providing a mechanism for selling and settling the land. The Northwest 

Ordinance of 1787 addressed political needs. Following the Ordinance of 1785 

Congress eased conditions for sales on credit. Widespread defaults and forfeitures 

followed. As these defaults and forfeitures were being re-vested in and reverted to 

the United States, these lands or the property of the United States became territory

or other property of the United States, in Article 4, Section 3, Clause 2, that couldn’t 

be taxed when available for disposal, but could be taxed, once homesteaded.

The needful rules and regulations respecting the Territory or other property”

as it relates to Oregon and for the purposes of Article 4 Section 3,

 

1 Defendant believes that the text of the Northwest Ordinance of 1787 is missing the word “or.” Without 

that word added the “lands,” referred to in the Ordinance are not in the proper relation to “property” as nontaxable lands or the property of the United States. Neither the online printed version of the Northwest 

Ordinance nor the handwritten version contain this necessary language. [The Northwest Ordinance 

handwritten version lacks a Section 14, Article 4 entirely.] The proper relation between “lands or the 

property” is to clarify that the lands or the property of the United States cannot be taxed. When 

homesteaded, lands can be taxed and improvements to the lands, which would be property, can be taxed, as 

in houses, barns, fences and other like structures. Other property in Article 4, Section 3, Cl. 2, of the 

United States Constitution would be property, in proper relation to lands in the Northwest Ordinance of 

1787, not public lands.

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cl. 2, were also established by Congress through the Oregon Territorial Act of 1848:

“AN ACT, To Establish The Territorial Government Of Oregon, . . .

Section 6. And be it further enacted, that the legislative power of the 

territory, shall extend to all rightful subjects of legislation not 

inconsistent with the Constitution and laws of the United States; but 

no law shall be passed interfering with the primary disposal of the soil; 

no tax shall be imposed upon the property of the United States; nor 

shall the lands or other property of nonresidents, be taxed higher than 

the lands or other property of residents. All the laws passed by the 

legislative assembly, shall be submitted to the Congress of the United 

States, and if disapproved shall be null and of no effect...

And all such laws, or any law or laws, inconsistent with the provisions 

of this act, shall be utterly null and void; and all taxes shall be equal 

and uniform, and no distinction shall be made in the assessments 

between different kinds of property, but the assessments shall be 

according to the value thereof. To avoid improper influences, which 

may result from intermixing in one and the same act such things have 

no proper relation to each other, “every law shall embrace but one 

object, and that shall be expressed in the title.”

For the purposes of the Oregon Territory Act and Article IV, Section 3, 

Clause 2 of the United States Constitution other property means houses, barns, 

fences and other like structures. In the American West, 57% of the homesteaders 

made good on their claims allowing them to retain possession of their homestead. 

Nevertheless a large proportion of homesteaders, 43%, had their lands or other 

property re-vested in or reverted back to the United States under the Donation Land 

Claim Act of 1850. It is only these lands or other property that became “Territory” 

or other property belonging to the United States. 

In the Constitution the only place the phrase “other property” appears is in 

Article 4, Section 3, cl. 2: lands which used to be territory, until homesteaded 

became lands in relation to other property for taxation purposes. The only thing 

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lands could have been a proper relation to involving taxes, would be houses, barns, 

fences and other like structures that are taxable. Other property in Article 4 Section 

3 Clause 2, can only be houses, barns, fences and other like structures. 

The present state of the law is that the Supreme Court decided in 1840 that 

the phrase other property is public lands. United States v. Gratiot, 39 US 526, 537 

(1840):

“The term territory as here used is merely descriptive of one kind of 

property: and is equivalent to the word lands. And Congress has the 

same power over it as over any other property belonging to the United 

States; and this power is vested in Congress without limitation;” 

The Supreme Court is wrong. Public lands are not a proper relation to lands

or territory. The Constitution does not expressly define the phrase other property.

We must go to the Oregon Territorial Act of 1848 to understand the limitations on 

what “other property is.” We know at the time of the ratification of the Constitution 

there were no public lands in the States. The only land controlled by the federal 

government was “Territory” at the time the Constitution was ratified. Houses, 

barns, fences and other like structures that re-vested in or reverted to the federal 

government under the Donation Land Claim Act of 1850 are the other property that 

is in proper relation to lands or Territory as understood in the Oregon Territorial Act 

of 1848. 

2. This definition of other property is inconsistent with intent of the 

framers to preserve the sovereignty of the States.

“FREE AND INDEPENDENT STATES” were paramount to the founding 

of our Nation according to the Declaration of Independence. Similarly, the Articles 

of the Confederation states: “Each said State retains its sovereignty, freedom, and 

independence.” The United States Constitution supports the same ideals in 

establishing a federal government of limited and enumerated powers. If the 

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Constitution does not delegate that power, the federal government does not have 

that power.

Our founding fathers would never have imagined that legislation inconsistent 

to the Constitution over taxing lands and or other property would morph into the 

federal government owning public lands in the states. 

Nothing in the Constitution delegates to the federal government the power to 

own lands in the States, nor is the power to own lands in the States prohibited by 

the Constitution to the States, thus the power to own lands in the States is reserved 

to the States, pursuant to the 10th Amendment. “The powers not delegated to the 

United States by the Constitution, nor prohibited by it to the States, are reserved to 

the States respectively, or to the People.”

3. Conclusion:

Since this land did not belong to federal government and in fact belonged to 

the People of the State of Oregon, this Court may not exercise jurisdiction over these 

defendants and this case should be dismissed.

Respectfully submitted on June 9, 2016

Kenneth Medenbach

Pro Se Defendant.

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