2007 wl 968224 (c.a.9) page 1 for opinion see 2008 wl ... · for opinion see 2008 wl 141851 united...

For Opinion See 2008 WL 141851

United States Court of Appeals,Ninth Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

Karen Sue LOWRY, Defendant-Appellant.

No. 06-10469.

January 24, 2007.

D.C. No. 2:05-CR-399 LKK (E.D. Calif., Sacramento) Mag. No. 03-50036 CMK (E.D.

Calif., Redding)

Appeal from the United States District Court for the Eastern District of Califor-

nia

Brief for Appellee

Mcgregor W. Scott, United States Attorney, Samantha S. Spangler, Assistant U.S.

Attorney, 501 I Street, Suite 10-100, Sacramento, California 95814, Telephone:

(916) 554-2792, Attorneys for Appellee, United States of America.

*i TABLE OF CONTENTS

TABLE OF AUTHORITIES ... iii

JURISDICTION ... 1

ISSUES PRESENTED FOR REVIEW ... 2

STATEMENT OF THE CASE ... 2

1. Nature Of The Case, Course Of Proceedings, And Disposition Of The Case In The

District Court ... 2

2. Bail Status ... 5

STATEMENT OF FACTS ... 6

ARGUMENT ... 15

I. The Evidence was Sufficient to Support the Convictions ... 15

A. Standard of Review ... 15

B. Discussion ... 16

1. Affirmative Defense ... 18

2. Distinguishing Tribal from Individual Aboriginal Occupancy Rights ... 23

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a. The Tribal Right of Occupancy ... 23

b. The Individual Aboriginal Right of Occupancy ... 25

3. The Magistrate Judge Correctly Ruled that Lowry Does Not Meet the Require-

ments to Come Within the Judicially Created Doctrine of Individual Aboriginal

Right of Occupancy ... 29

*ii a. Lowry's Area of Actual Occupancy Is Dramatically Smaller than the

Claimed Area of Occupancy Within the Meaning of the Individual Aboriginal Occu-

pancy Doctrine ... 30

b. The Occupancy Was Not Continuous ... 34

c. The Land Was Withdrawn from Entry ... 37

d. The Tripp Family Already Has an Allotment ... 40

e. The Occupancy Has Not Been Exclusive ... 41

II. The Magistrate Judge Did Not Deny Lowry Due Process by Precluding Her Affirm-

ative Defense of Collaterally Attacking the Denial of her Application for an Indi-

an Allotment ... 46

A. Standard of Review ... 47

B. Discussion ... 48

CONCLUSION ... 57

STATEMENT OF RELATED CASES ... 58

CERTIFICATE OF COMPLIANCE ... 59

*iii TABLE OF AUTHORITIES

FEDERAL CASES

Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) ... 55

Christensen v. United States, 755 F.2d 705 (9th Cir 1985) ... 55

Contreras v. Schiltgen, 122 F.3d 30 (9th Cir. 1997), aff'd after re-argument 151

F.3d 906 (9th Cir. 1998) ... 56

Cramer v. United States, 261 U.S. 219 (1923) ... 26, 32, 33, 44

Donahue v. Butz, 363 F. Supp. 1316 (N.D ... 25

Duesing v. Udall, 350 F.2d 748 (D.C. Cir. 1965) ... 55

Finch v. United States, 387 F.2d 13 (10th Cir. 1967) ... 40, 55

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Haley v. Seaton, 281 F.2d 620 (D.C. Cir. 1960) ... 55

Hoglund v. Lane, 44 App. D.C. 310 (D.C. Cir. 1916), aff'd 244 U.S. 174 (1917) ...

38

Hopkins v. United States, 414 F.2d 464 (9th Cir. 1969) ... 41, 52, 55

Jackson v. Virginia, 443 U.S. 307 (1979) ... 15

Johnson v. M'Intosh, Wheat. 543, 5 L. Ed. 681 (1823) ... 24

La Rogue v. United States, 239 U.S. 62 (1915) ... 52

McKelvey v. United States, 260 U.S. 353 (1922) ... 18

*iv Minnesota Chippewa Tribe v. United States, 315 F.2d 906 (Ct. Cl. 1963) ... 24,

26

Neder v. United States, 527 U.S. 1 (1999) ... 18

Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) ... 26

Paradis v. Arave, 240 F.3d 1169 (9th Cir. 2001) ... 30

Pease v. Udall, 332 F.2d 62 (9th Cir. 1964) ... 55

Plaine v. McCabe, 797 F.2d 713 (9th Cir. 1986) ... 56

Saulque v. United States, 663 F.2d 968 (9th Cir. 1981) ... 50

Schlup v. Delo, 513 U.S. 298 (1995) ... 16

Strong v. United States, 518 F.2d 556 (Ct. Cl. 1975) ... 24

Super v. Work, 3 F.2d 90 (D.C. Cir. 1925) ... 25

Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) ... 24

Udall v. Tallman, 380 U.S. 1 (1965) ... 55

United States v. Alefrahin, 433 F.3d 1148 (9th Cir. 2006) ... 18

United States v. Atkinson, 990 F.2d 501 (9th Cir. 1993) ... 16

United States v. Atlantic Richfield Co., 435 F. Supp. 1009 (D. Alaska 1977) ... 24

United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005) ... 15

United States v. Banuelos Rodriquez, 215 F.3d 969 (9th Cir. 2000) ... 3

*v United States v. Coutchavlis, 260 F.3d 1149 (9th Cir. 2001) ... 18

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United States v. Dann, 470 U.S. 39 (1985) ... 26

United States v. Dann, 873 F.2d 1189 (9th Cir. 1989) ... 26, 27, 28, 33, 37, 44

United States v. Durham, 464 F.3d 976 (9th Cir. 2006) ... 15, 16

United States v. Gemmill, 535 F.2d 1145 (9th Cir. 1976) ... 17

United States v. Freter, 31 F.3d 783 (9th Cir. 1994) ... 19, 20, 21, 22

United States v. Gillock, 886 F.2d 220 (9th Cir. 1989) ... 16

United States v. Gonsalves, 675 F.2d 1050 (9th Cir. 1982) ... 19

United States v. Gravenmeir, 121 F.3d 526 (9th Cir. 1997) ... 20

United States v. Hester, 719 F.2d 1041 (9th Cir. 1983) ... 20, 21, 22

United States v. Kent, 945 F.2d 1441 (9th Cir. 1991) ... 3, 25, 28, 29, 37-40, 52

United States v. Mendoza-Looez, 481 U.S. 828 (1987) ... 56

United States v. Ortuno-Higareda, 450 F.3d 406 (9th Cir. 2006) ... 47

United States v. Pearson, 274 F.3d 1225 (9th Cir. 2001) ... 22

United States v. Perlaza, 439 F.3d 1149 (9th Cir. 2006) ... 18

United States v. Rodriguez, 464 F.3d 1072 (9th Cir. 2006) ... 15

United States v. Ross, 106 F.3d 896 (9th Cir. 2000) ... 47

*vi United States v. Sanders, 421 F.3d 1044 (9th Cir. 2005) ... 15

United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941) ... 24, 26

United States v. Sweeney, 914 F.2d 1260 (9th Cir. 1990) ... 2

STATE CASES

Garrison v. Sampson, 15 Cal. 93 ... 33

FEDERAL STATUTES

36 C.F.R. § 211.18(b) (3) ... 54

36 C.F.R. § 251.83 ... 54

36 C.F.R. § 251.86 ... 54

36 C.F.R. § 251.101 ... 54

36 C.F.R. § 261.2 ... 17

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36 C.F.R. § 261.10(b) ... 1, 16, 17, 29

36 C.F.R. § 261.10 (k) ... 1, 16, 17

43 C.F.R. § 2531 (a) ... 52

43 C.F.R. § 2531(b) ... 52

43 C.F.R. § 2533.0-8 ... 53

43 C.F.R. § 2533.1 ... 51

43 C.F.R. § 2533.2(a) ... 52

16 U.S.C. § 1271 et seq ... 39

16 U.S.C. § 1276(a) ... 39

16 U.S.C. § 1279 ... 38

16 U.S.C. § 551 ... 1, 16

18 U.S.C. § 3401(a) ... 1

18 U.S.C. § 3402 ... 2

*vii 18 U.S.C. § 3742 ... 2

25 U.S.C. § 331 et seq ... 50

25 U.S.C. § 337 ... 38, 40, 50-53, 55

25 U.S.C. § 345 ... 56

28 U.S.C. § 1291 ... 2

28 U.S.C. § 1353 ... 55

28 U.S.C. § 2401 (a) ... 55

Fed. R. App. P. 4 ... 2

Fed. R. Crim. P. 58 ... 1

Fed. R. Crim. P. 58(g) (2) (B) ... 1, 2

26 Stat. at L. 1095, chap. 561, Comp. Stat. 1913, sec. 5116 ... 38

34 Stat. 3001 (1905) ... 17, 38

E.D. Cal. L.R. 72-302(b) (3) ... 1

E.D. Cal. L.R. Crim. 58-421 ... 1

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E.D. Cal. L.R. Crim. 58-422 ... 2

JURISDICTION

The defendant was charged with violating 16 U.S.C. § 551 and 36 C.F.R. §§

261.10(k) and (b). E.R. Tab 1. The magistrate judge had jurisdiction over these

petty offenses. 18 U.S.C. § 3401(a); Fed. R. Crim. P. 58; E.D. Cal. L.R. 72-302(b)

(3) and Crim. 58-421. On September 28, 2005, the magistrate judge entered a judg-

ment of conviction on both charges. E.R. Tab 24. The defendant filed a timely no-

tice of appeal to the district court on September 29, 2005. E.R. Tab 25; C.R. 1;

Fed. R. Crim. P. 58(g) (2) (B). The district court had appellate jurisdiction. 18

U.S.C. § 3402; Fed. R. Crim. P. 58 (g) (2) (B); L.R. Crim. 58-422; United States

v. Sweeney, 914 F.2d 1260 (9th Cir. 1990). The district court affirmed the convic-

tions on July 25, 2006. E.R. Tab 27; C.R. 55. On July 26, 2006, the defendant

filed a timely notice of appeal to this Court. E.R. Tab 28; C.R. 56; Fed. R. App.

P. 4. This Court therefore has jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. §

1291.

ISSUES PRESENTED FOR REVIEW

1. Whether the two convictions of unlawful occupancy were supported by sufficient

evidence.

2. Whether the magistrate judge erred in precluding the defendant from presenting

evidence at trial pertaining to the denial of her Indian allotment application.

STATEMENT OF THE CASE

1. Nature Of The Case, Course Of Proceedings, And Disposition Of The Case In The

District Court

In summary, the government prosecuted defendant Karen Sue Lowry for her unlawful

occupancy on National Forest land - which has continued unabated since April 1983.

The defendant contended she had the right to be there under the doctrine of indi-

vidual aboriginal right of occupancy. The defendant also sought to show that her

application for an Indian Allotment was improperly denied - an affirmative defense

that was precluded by the magistrate judge, presented anyway, and then found lack-

ing.

On November 2 and 20, 2002, the United States Forest Service issued eight viola-

tion notices to defendant Lowry for unlawful occupancy on National Forest land and

various other petty offense violations. E.R. Tab 29. Lowry made her initial ap-

pearance on January 21, 2003; the magistrate judge appointed counsel and continued

the arraignment several times. Id.

On August 3, 2003, a 23-count information was filed. E.R. Tab 1. There were numer-

ous continuances while the parties exchanged extensive discovery, engaged in plea

negotiations, conducted factual investigations and legal research, and filed

lengthy trial briefs with multiple exhibits. E.R. Tab 29.

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The government agreed to proceed only on the two lead charges - two different the-

ories of unlawful occupancy on National Forest land - and not to pursue the other

charges or a sentence of incarceration, and instead to limit its remedy to abate-

ment of the trespass and restitution for clean-up costs. E.R. Tab 2, Tab 21 at

1:24-28; C.R. 17; S.E.R. Tab 1 at 1-2.[FN1]

FN1. Lowry notes that, “rather than initiating a civil eviction action

against Ms. Lowry, the government elected to file criminal charges.” A.O.B.

at 25. This is an apparent reference to the criticism by the dissent in Kent

of the government's election of criminal charges. However, the dissent did

not carry the day, and the Court upheld the criminal conviction. Kent, 945

F.2d 1441. The government's limitation of its remedy here sharply contrasts

with Kent, where the district court imposed a 30-day jail sentence. The pro-

secutor's discretionary decision to file criminal charges is unreviewable

absent prima facie evidence of discrimination based on factors such as

gender, race, religion, or personal beliefs. United States v. Banuelos-

Rodriquez, 215 F.3d 969, 976-77 (9th Cir. 2000). Lowry has not even alleged

such discrimination. Moreover, Lowry's appointed trial counsel is a highly

experienced and well-respected criminal defense attorney and “one of the

finest defense lawyers in Redding” who the magistrate judge acknowledged put

in substantial effort on her behalf. R.T. (5-24-05) at 161, 190. She would

not have been entitled to appointed counsel if the government had proceeded

by way of a civil ejectment action. Lowry could not have afforded to hire

counsel. R.T. (5-24-05) at 47.

On May 2, 2005, the government moved in limine to preclude Lowry from collaterally

attacking the denial of her Indian Allotment application as a defense. E.R. Tab 3.

On May 18, 2005, the magistrate judge granted the government's motion and pre-

cluded evidence of that defense.[FN2]

E.R. Tab 4, Tab 21 at 17:14.

FN2. Despite this ruling, the parties agreed to the admission of certain ex-

hibits pertaining to this defense, and the magistrate judge addressed the

matter in his written ruling. S.E.R. Tab 1; S.E.R. Tab 14 at 13-59; E.R. Tab

21.

A bench trial was held on May 23 and 24, 2005. On May 23, 2005, at the commence-

ment of the partially-stipulated-facts trial, the magistrate judge reviewed with

Lowry the stipulations, which consisted of summaries of testimony certain wit-

nesses would have given if they had testified in the government's case-in-chief as

well as specific facts to which Lowry agreed. S.E.R. Tab 1; S.E.R. Tab 14 at

13-50. The exhibits to which those stipulations pertained were admitted and the

government rested. S.E.R. Tab 14 at 50. Lowry put her witness stipulations on the

record and the pertinent exhibits were admitted. Id. at 51-59. Lowry then called

witnesses and personally testified. R.T. (5-23-05) at 59-182; R.T. (5-24-05) at

1-84. The government called two rebuttal witnesses. R.T. (5-24-05) at 82-130.

Lowry took the stand again in sur-rebuttal. Id. at 130-132. The attorneys gave

their closing arguments. R.T. (5-24-05) at 132-188. After reviewing the admission

of exhibits, the magistrate judge ordered the matter submitted. Id. at 188-191.

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On August 30, 2005, the magistrate judge issued an extensive “Decision and Pro-

posed Judgment” rejecting Lowry's affirmative defenses, finding her guilty of the

two unlawful occupancy charges, and indicating his intention to sentence her to

informal probation for one year and order her to cease residing on all National

Forest land within 180 days of entry of judgment. E.R. Tab 21. The order also

scheduled a sentencing hearing for September 27, 2005. Id.

On September 27, 2005, after hearing from counsel and Lowry, the magistrate judge

imposed the intended sentence, except that he gave her seven months - until April

30, 2006 - to cease her unlawful occupancy of National Forest land. R.T.

(9-27-05); E.R. Tab 23 at 27. Lowry timely appealed to the district court. E.R.

Tab 25.

After extensive briefing and oral argument, the district court affirmed the con-

victions by order filed on July 25, 2006. E.R. Tab 27. The district court stayed

execution of the judgment pending resolution of this appeal. C.R. 4, 30, 54, 55.

2. Bail Status

The defendant is not in custody and no sentence of incarceration was imposed.

STATEMENT OF FACTS

Most of the basic facts are not in dispute. Lowry occupies land located within

Township 11 North, Range 6 East, Humboldt Meridian, within the Klamath National

Forest. E.R. Tab 5 at 14-16, 19-20; S.E.R. Tab 14 at 49. Lowry's occupancy is for

residential purposes. S.E.R. Tab 14 at 21-25, 27-33, 36-37. Lowry's residence is

250 to 300 feet from the nearest boundary line of Indian Allotment 280, a

6.48-acre parcel held by her brother, Harold Tripp. E.R. Tab 5 at 15, 19-20. Her

residence is near the main stem of the Salmon River, and within the area desig-

nated in 1981 as part of the Federal Wild and Scenic River System. Id. Lowry's

residence and other personal property - out buildings, other mobile homes, junked

automobiles, and other debris - are strewn over an area covering approximately

five acres. E.R. Tab 6 at 301, Tab 21; S.E.R. Tab 2[FN3,]

Tab 3.

FN3. S.E.R. Tab 2 (Govt. Exh. 1) depicts Allotment 280 as a yellow, roughly

triangular shape and the trespass site as an orange, circular shape.

Lowry has not been granted a special-use authorization to occupy the area. S.E.R.

Tab 14 at 29. Lowry has not been granted an Indian Allotment to any land within

Township 11 North, Range 6 East, Humbolt Meridian. S.E.R. Tab 14 at 15-16.

On numerous occasions Lowry received notice from the Forest Service that her occu-

pancy was not authorized. S.E.R. Tab 14 at 21-25, 26-33; R.T. (5-24-05) at 64-66.

She was even warned that she faced criminal prosecution. S.E.R. Tab 14 at

28:10-12.

In attempting to establish an individual aboriginal right of occupancy, Lowry

presented evidence of her family tree. S.E.R. Tab 5. The following is a brief sum-

mary of that part of the family history that is relevant to her claim of an indi-

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)


vidual aboriginal right of occupancy.

Lowry's grandmother, Bessie Tripp, was born in a traditional Karuk house located

on the parcel that subsequently became Allotment 280, which is near the area of

Lowry's unlawful occupancy. E.R. Tab 5 at 101, 119; S.E.R. Tab 14 at 54-55. Mrs.

Tripp was raised in a house at “the upper end” - by the bluffs to the east. E.R.

Tab 5 at 119, 121-22; S.E.R. Tab 14 at 120. She resided on Allotment 280 continu-

ously from approximately 1926 until shortly before her death. E.R. Tab 5 at 122;

S.E.R. Tab 6 at 245, Tab 14 at 56, 81, 141, 155-61. Bessie Tripp died on December

6, 1982, at between 107 and 113 years of age. E.R. Tab 5 at 34, 102; S.E.R. Tab 14

at 102, 138. Although Lowry's residence sits approximately where the home of

Bessie Tripp's grandmother, Mahkawa'da, was located, Bessie Tripp never lived in

that house or any other house at that location. S.E.R. Tab 14 at 120; E.R. Tab 5

at 121; S.E.R. Tab 14 at 141-43.

Allotment 280 was granted to Oak Bottom Jack, who was Bessie Tripp's uncle. E.R.

Tab 5 at 115. Bessie Tripp tried to correct the alleged error that was occasioned

by the allotment having been placed in Oak Bottom Jack's name instead of her name.

Id. and at 123-24; S.E.R. Tab 14 at 145-46, 172-81.

Lowry resided on Allotment 280 with Bessie Tripp until she was 11 years old.

S.E.R. Tab 6 at 246, Tab 15 at 4. Lowry and her brother were removed from Bessie

Tripp's care by the County and placed in foster care. S.E.R. Tab 14 at 58, Tab 15

at 4. When Lowry turned 17 and graduated from high school, she did not return to

the Oak Bottom area; instead, she worked and lived in various other places until

April 1983, including Yreka, Weed, Redding, Happy Camp, and Orleans, California;

Aberdeen, Washington; Ketchikan, Alaska; and Springerville and Phoenix, Arizona.

R.T. (5-24-05) at 5-11, 41-42, 44, 46, 48-50, 52, 78-80; R.T. (5-23-05) at 38-45;

S.E.R. Tabs 6, 7, 8.

One significant fact about which there was material dispute at trial was the date

Lowry began her residency at her present location - the site of the unlawful occu-

pancy. The magistrate judge resolved the dispute by finding that date to be April

1983. E.R. Tab 21 at 9 and n. 10, citing Govt. Exh. 7; S.E.R. Tab 8. The magis-

trate judge found that the most reliable source of the date is a letter Lowry

wrote on August 18, 1988, in which she indicated:

I worked in Phoenix, AZ in 1980-81. Then moved back here in Nov. 1981. Spent 1982

in Orleans & Happy Camp. April 83 moved trailer here to my present location, and

have lived here for the past six years [.]

E.R. Tab 21 at 9, n. 10; S.E.R. Tab 8 at 222. Lowry also stated in her August 23,

1990, letter to Forest Supervisor Barbara Holder that she “moved to my present

location in April of 83” and that she “spent much of the time between 81 and April

of 83 at my Grandmother[']s as I took care of her a lot of the time when Rhonda &

Harold were [separated].” S.E.R. Tab 6 at 246.

Lowry's testimony also supports the magistrate judge's fixing of the date as April

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of 1983. Lowry testified that when she returned from Arizona in 1981, she first

lived in a small trailer that belonged to her brother located on the river bar be-

hind Bessie Tripp's house, on Allotment 280. S.E.R. Tab 15 at 8:17-25. Lowry's

boyfriend, Robert Garrison, then cleared the area where she currently resides;

Lowry and Garrison bought a trailer; and they placed it there. Id. at 10, 46, 81.

She remembered doing this in 1982, she testified, because her son was born on

Christmas Eve 1981. Id. at 10. However, on cross-examination, she admitted that

after first residing in the small trailer on the river bar, she rented a place in

Orleans, then bought a trailer and moved it to Happy Camp. Id. at 45-48. She ad-

mitted she did not actually live on the site of her current occupancy because

there were no facilities and she had a newborn baby. Id. at 47-48, 52, 75. She

also admitted that when she returned from college in 1974, she lived in the small

trailer owned by her brother on the river bar and that in 1981 she “returned to

the same location” - meaning that small trailer. Id. at 48-51; S.E.R. Tabs 7, 8.

She admitted she moved to the trespass site in April of 1983 but claimed “it's all

the same property.” S.E.R. Tab 15 at 51. Lowry testified she was staying with her

grandmother (on Allotment 280) when her grandmother died at the end of 1982, al-

though Lowry admitted she was then living in Happy Camp. Id. at 52.

Lowry testified repeatedly that when she moved onto the trespass site, her daugh-

ter Georgia was four years old, that Georgia was about three years old when Lowry

broke up with Georgia's father, and that she stayed in Phoenix, Arizona, for about

a year after the break-up before returning to the Oak Bottom area. S.E.R. Tab 15

at 9, 43-44, 47. Under questioning by the magistrate judge, Lowry admitted that

Georgia was born in XX/XX/1979 and did not turn four until December 1983. Id. at

77. Lowry admitted that in 1981, when she returned permanently to the Oak Bottom

area, she was pregnant with her son Robert (who was born XX/XX/1981, in Hoopa),

and that when she moved onto the trespass site she was pregnant with her daughter

Roberta (who was born XX/XX/1983). Id. at 45-46, 78. The magistrate judge ques-

tioned whether Lowry could have mixed up the date when she returned to the Oak

Bottom area from Arizona and the date when she moved onto the trespass site be-

cause she was pregnant both times. Id. Lowry first denied that she was mixed up,

but then claimed it was too long ago to remember. Id. When questioned further

about when and where Georgia was born, Lowry was certain she was born in Aberdeen,

Washington, but she could not recall what year. Id. at 78-79. Nonetheless, Lowry

was certain at the time of trial in May 2005 that Georgia was 25 years old. Id. at

41. Using simple math, Georgia must have been born in XX/XX/1979 (id.), meaning

she was four years old in April 1983.

Finally, the April 1983 date is also supported by other trial evidence. During an

evaluation by Forest Service archaeologists Jim Rock and Elena Nilson, three meet-

ings were held in August and September of 1981 and all people present were listed

- Lowry is not identified as being present at these meetings. E.R. 14 at 287-288.

Because the archaeological evaluation included the trespass site, surely the re-

port would have mentioned Lowry's occupancy had she established it by then, but it

did not. Id.[FN4]

In a letter dated August 28, 1981, to Harold and Rhonda Tripp,

District Ranger David Peters listed the people present, including Jim Rock, at a

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meeting on August 20, 1981, at Three Dollar Bar, which is immediately adjacent to

Allotment 280 and the trespass site; Lowry was not listed as present at the meet-

ing, nor was her occupancy noted on the diagram attached to the letter. S.E.R. Tab

9.[FN5]

FN4. Attached to Lowry's August 17, 1990 letter to Forest Supervisor Holder

is a diagram prepared by Jim Rock, on which she added two hand-written nota-

tions to identify her area of occupancy and the location of the trailer she

moved into in 1974. S.E.R. Tab 7 at 363; E.R. Tab 14; R.T. (5-24-05) at 189.

FN5. This and other trial evidence contradicts the testimony of Rhonda Tripp

that Lowry moved to the trespass site in 1981. R.T. (5-23-05) at 125-26.

Mrs. Tripp moved to Redding in September of 1981. Id. at 137. She was not

aware of Lowry living with her husband Bernard on his allotment across the

river. Id. at 150.

Jeanerette Jacups-Johnny could not provide any reliable testimony regarding

occupancy on the trespass site from 1963 to 1980 because she was then living

in Oregon. Id. at 89. Additionally, her family home was in Butler's Flat, 8

miles away from Somes Bar and 7-8 miles “up off the [Salmon] River.” Id. at

76. She moved to Yreka at age 5 to attend school, from 1941 on, and visited

home in Butler's Flat 6-7 times a year; she would periodically visit Bessie

Tripp. Id. at 68-69, 80-81, 93. She also attended flower dances southeast of

Allotment 280 near the river; however, these dances ceased “during the war”

and started up again in the 1980s, and she never attended one there before

the 1980s. Id. at 86-89; see also E.R. Tab 14 at 284 (reporting Bessie

Tripp's 1981 statement that the flower dance had not been performed on the

old village site for 110 years).

SUMMARY OF ARGUMENT

The evidence was sufficient to support both convictions. Lowry stipulated to the

admission of the government's evidence in its case in chief, which demonstrated

that Lowry residentially occupied National Forest land, that she did not have a

special-use authorization, and that she had no Indian Allotment authorizing her

occupancy.

The magistrate judge properly ruled that Lowry's claim of individual aboriginal

right of occupancy was an affirmative defense on which she bore the initial burden

of demonstrating that she came within its scope. Supreme Court and Ninth Circuit

precedent support that ruling. Therefore, the district court erred in ruling that

such claim was not an affirmative defense and that the magistrate judge improperly

shifted the government's burden to the defendant. However, the district court

ruled that this alleged error was harmless because the trial evidence showed that

the individual aboriginal right of occupancy did not apply to Lowry. The record

reflects that the magistrate judge and the parties understood that the government

bore the ultimate burden of proving beyond a reasonable doubt that Lowry's occu-

pancy was not “otherwise authorized by federal law” and that she was not relieved

from the obligation to obtain a special-use authorization, which she had not ob-

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)


tained, nor could she.

Lowry did not meet her burden of coming forward with evidence showing that she was

entitled to rely on the individual aboriginal right of occupancy doctrine. That

doctrine requires a showing that she and her lineal ancestors[FN6]

continuously

occupied a particular tract of land to the exclusion of others from before the

time that the land was withdrawn from entry and settlement. Although she is a

qualified Indian, she did not take up occupancy at the specific site until April

1983, after it had been withdrawn from entry both by the creation of the Klamath

National Forest by presidential proclamation in 1905 and by the designation of the

Salmon River as a Wild and Scenic River in 1981. She could not rely upon the pres-

ence of lineal ancestors - let alone collateral ascendants or Karuk Tribe members

- who resided intermittently in the general vicinity on nearby parcels. Lowry

could not rely upon tribal aboriginal rights because her Tribe's rights were ex-

tinguished long before her entry and an individual may not claim such rights on

behalf of her Tribe.

FN6. “Lineal ancestors” and “lineal descendants” are blood relatives in the

same line of ascent and descent, such as great-grandparents, grandparents,

parents, children, grandchildren, and great-grandchildren. These are distin-

guished from collateral ancestors, including aunts and uncles, and from col-

lateral descendants, including nieces and nephews. See Black's Law Diction-

ary (8th ed. 2004), defining ancestor, ascendant, collateral ascendant, lin-

eal ascendant, descendent, collateral descendant, and lineal descendent.

Lowry's lineal ancestor, Bessie Tripp, never resided on the particular tract of

land where Lowry has resided since April 1983; instead, she resided on a nearby

tract of land - known as Allotment 280 - continuously from 1926 until her death in

December 1982. Lowry's family currently possesses Allotment 280 and has held it

since its creation in 1929. The requirement of continuous, exclusive occupancy on

a particular tract of land is not satisfied by the presence of lineal ancestors or

collateral ascendants on nearby parcels - even if their occupancy is continuous

and pre-dates withdrawal. Such an unwarranted extension of the doctrine is not

supported by case law, public land policy, nor common sense. Because Lowry did not

show that she came within this affirmative defense, there was ample evidence to

support her two convictions for unlawful occupancy.

The magistrate judge did not err in ruling pre-trial that Lowry would not be per-

mitted to put on evidence in support of an affirmative defense that she was al-

legedly denied due process in the Forest Service's denial of her allotment applic-

ation. Despite this ruling, Lowry was allowed to present evidence regarding her

claimed due process violation. There was sufficient evidence that the alleged

denial of due process would be irrelevant because she could not show that an al-

lotment would have been granted but for the alleged violation.

ARGUMENT

I. The Evidence was Sufficient to Support the Convictions

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A. Standard of Review

When weighing the sufficiency of the evidence, the Court must view the evidence in

the light most favorable to the government and must award the government all reas-

onable inferences that may be drawn from the evidence. United States v. Bahena-

Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005). The verdict must be sustained if

“any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis in original); United States v. Rodriquez, 464 F.3d 1072, 1078-79 (9th

Cir. 2006); United States v. Durham, 464 F.3d 976, 981 (9th Cir. 2006); United

States v. Sanders, 421 F.3d 1044, 1051 (9th Cir. 2005).[FN7]

“Under Jackson, the

assessment of *16 the credibility of witnesses is generally beyond the scope of

review.” Schlup v. Delo, 513 U.S. 298, 330 (1995). This Court must respect the ex-

clusive province of the trier of fact to determine the credibility of witnesses

and to resolve evidentiary conflicts, and must draw reasonable inferences from the

facts by assuming the trier of fact resolved all conflicts in favor of the ver-

dict. Durham, 464 F.3d at 983 n. 11; United States v. Gillock, 886 F.2d 220, 222

(9th Cir. 1989).

FN7. Lowry incorrectly states that the plain error standard of review ap-

plies. A.O.B. at 24-25. When reviewing the sufficiency of evidence presented

in a bench trial, the plain error standard is not triggered by the defend-

ant's failure to move for a judgment of acquittal, as it would be in the

case of a jury trial. United States v. Atkinson, 990 F.2d 501, 503 (9th Cir.

1993).

B. Discussion

Lowry was convicted of two separate unlawful occupancy regulations,[FN8]

both

Class B misdemeanors:

FN8. The Secretary of Agriculture has been empowered by Congress to promul-

gate rules and regulations to manage the National Forests and to regulate

the use and occupancy of those forests. 16 U.S.C. § 551. Sections 261.10(b)

and (k) of Title 36 of the Code of Federal Regulations were promulgated pur-

suant to that authority.

Taking possession of, occupying, or otherwise using National Forest System lands

for residential purposes without a special-use authorization or as otherwise au-

thorized by Federal law or regulation, in violation of 36 C.F.R. § 261.10(b); and

Use or occupancy of National Forest System land or facilities without special-use

authorization when such authorization is required, in violation of 36 C.F.R. §

261.10(k).

*17 There has never been any dispute that Lowry occupies land within the Klamath

National Forest[FN9]

for residential purposes and that she has no special-use au-

thorization[FN10]

or Indian allotment. The only disputed elements at trial were

(1) whether her occupancy was “otherwise authorized by Federal law or regulation”

within the meaning of § 261.10(b); and (2) whether a special-use authorization is

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)
































required within the meaning of § 261.10(k). Her primary claim is that she has an

individual aboriginal right of occupancy. The magistrate judge rejected that af-

firmative defense and found the evidence sufficient to support conviction on both

counts. E.R. Tab 21 at 11-14. The district court agreed with the magistrate judge

that the trial evidence did not show that Lowry had an individual aboriginal right

of occupancy and upheld her convictions. E.R. Tab 27 at 27:3-5. She assigns these

rulings as error. There was ample evidence supporting the magistrate judge's rul-

ing.

FN9. The site of the occupancy is on the land of Township 11 North, Rage 6

East, Humboldt Meridian, which is entirely within the Klamath National

Forest. President Theodore Roosevelt created the Klamath National Forest by

a proclamation issued on May 6, 1905, 34 Stat. 3001 (1905). Ownership of the

area is held by the United States. Cf. United States v. Gemmill, 535 F.2d

1145, 1148-49 (9th Cir. 1976) (recognizing Congress' unquestioned authority

to extinguish aboriginal rights and that creating a forest reserve effect-

ively extinguishes such rights). The area is administered by the United

States Forest Service.

FN10. A special use authorization is “a permit, term permit, lease or ease-

ment which allows occupancy, or use rights or privileges of National Forest

System land.” 36 C.F.R. § 261.2.

*18 1. Affirmative Defense

Lowry argues in this appeal, as she did in her appeal to the district court, that

her claim of individual aboriginal right of occupancy was not an affirmative de-

fense on which she bore any burden of proof or production of evidence. She con-

tends that, in identifying the claim as an affirmative defense, the magistrate

judge improperly shifted the burden of proof from the government onto her. A.O.B.

at 27, 31-36.[FN11]

Because the magistrate judge properly applied the burdens of

proof and production, there was no error.

FN11. None of the cases Lowry relies upon for her argument that the magis-

trate judge improperly shifted the burden involved affirmative defenses.

A.O.B. 31-33, citing United States v. Coutchavlis, 260 F.3d 1149, 1156 (9th

Cir. 2001) (interpreting trial judge's statement after bench trial: “There

has been no contrary evidence presented, so the court will find as a fact

that he did punch out the windshield” as not shifting burden to defendant);

Neder v. United States, 527 U.S. 1, 15-16 (1999) (district court's finding

of materiality in tax fraud jury trial improperly removed element from

jury's consideration); United States v. Perlaza, 439 F.3d 1149, 1170-71 (9th

Cir. 2006) (prosecutor's closing argument regarding “presumption of guilt”

improperly shifted burden to defendant); United States v. Alferahin, 433

F.3d 1148, 1155, 1158 (9th Cir. 2006) (omission of materiality instruction,

in prosecution for knowingly procuring naturalization contrary to law, im-

properly reduced government's burden).

The magistrate judge ruled that the defendant had the burden of “going forward

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with these affirmative defenses, since they were not elements of the case in

chief.” E.R. Tab 21 at 4:2-9, citing McKelvev v. United States, 260 U.S. 353, 357

(1922) (“an indictment ... founded on a general provision defining the *19 ele-

ments of an offense ... need not negate the matter of an exception made by a pro-

viso or other distinct clause, ... and that it is incumbent on one who relies on

such an exception to set it up and establish it.”), and United States v. Freter,

31 F.3d 783, 788 (9th Cir. 1994) (noting the “well established rule ... that a de-

fendant who relies upon an exception to a statute ... has the burden of establish-

ing and showing that he comes within the exception.”). The magistrate judge ex-

plained, “Where, as in this case, the ‘statutory prohibition is broad and the ex-

ception is narrow, it is more probable that the exception is an affirmative de-

fense’.” E.R. Tab 21 at 4:9-11, quoting Freter, 31 F.3d at 788.

The magistrate judge concluded that Lowry “failed to establish” an individual ab-

original right of occupancy. E.R. Tab 21 at 14:26-27. The district court disagreed

that the claim was an affirmative defense, but held that this alleged error was

harmless. E.R. Tab 27 at 13:19-15:5. Still, the district court recognized:

Even if individual title is construed as an affirmative defense, the final burden

of proof is with the government. It is well-established that when a defendant

raises an affirmative defense, the burden shifts back to the prosecution to

“disprove every element of the affirmative defense beyond a reasonable doubt.”

E.R. Tab 27 at 14:13-18, quoting United States v. Gonsalves, 675 F.2d 1050, 1054

(9th Cir. 1982). The district court stated that Lowry “did in fact raise the af-

firmative defense” and the burden *20 shifted back to the government. E.R. Tab 27

at 14:19-22. Because the magistrate judge concluded there was proof beyond a reas-

onable doubt that Lowry had no authorization to live on the land, the district

court found the “mischaracterization of the burden” to be harmless. Id. at 15:1-5.

The magistrate judge committed no error.

The magistrate judge's post-trial decision was not his first ruling on the sub-

ject. In a status order filed March 2, 2005, the magistrate judge labeled Lowry's

claims as affirmative defenses and noted that “in finding exceptions to be affirm-

ative defenses, the relative burdens of the government versus the defendant with

respect to the production of evidence is important.” S.E.R. 13 at 3:25-4:9, citing

McKelvey and Freter as well as United States v. Gravenmeir, 121 F.3d 526 (9th Cir.

1997), and United States v. Hester, 719 F.2d 1041, 1043 (9th Cir. 1983). That or-

der also noted:

That the government could “prove the negative” in this case, however, does not

mean that it would be easier for the government to do so. More importantly, that

the government could disprove lawful ownership does not mean that the statute re-

quires it to do so.

S.E.R. 13 at 4:10-12. This passage closely paraphrases language from Gravenmeir,

121 F.3d at 528. It is consistent with language in Freter, 31 F.3d at 788:

It is far easier for the defendant to present evidence that the release is feder-

ally permitted under one of these statutes than for the government to produce

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evidence that the release is not permitted under any of them.

*21 The passage in the magistrate judge's status order is also consistent with

language in Hester, 719 F.2d at 1043:

It is far more manageable for the defendant to shoulder the burden of producing

evidence that he is a member of a federally recognized tribe than it is for the

Government to produce evidence that he is not a member of any one of the hundreds

of such tribes.

Likewise here, it is more manageable for the defendant to show that she has an in-

dividual aboriginal right of occupancy, rather than requiring the government to

show that she is not “otherwise authorized” by numerous other federal laws to oc-

cupy the land. Placing that burden on the government would require an exploration

of a plethora of inapplicable laws, such as showing that she had no rights under

the various mining laws, etc. More specifically, if all the defendant had to do

was “identify” the individual aboriginal right of occupancy as the other federal

law that authorized her occupancy, the government would be faced with the im-

possible burden of “proving a negative” by trying to trace the defendant's lineal

ancestors' occupancy - evidence that is uniquely within the defendant's control

and largely unavailable to the government.

The opinion in Hester explained that “[o]nce the defendant properly raises the is-

sue ..., then the ultimate burden of proof remains, of course, upon the govern-

ment.” Hester, 719 F.2d at 1043. The Freter opinion noted that by identifying the

matter as an affirmative defense, the court did not intend to imply that *22 it

was altering the government's ultimate burden of proving beyond a reasonable doubt

each fact necessary to constitute the offense, once the defendant “satisfied his

burden of production” on the affirmative defense. Freter, 31 F.3d at 789 n.

6.[FN12]

FN12. See also, United States v. Pearson, 274 F.3d 1225, 1232 (9th Cir.

2001) (noting that burden shifts back to government only after defendant

proves he comes within exception to statute).

In light of the magistrate judge's citations to Hester and Freter in the March 2,

2005 status order, the parties were on notice of how the court viewed their bur-

dens. At no time did Lowry object to this treatment, until her appeal to the dis-

trict court. The language of both the status order and the decision - referring to

the parties' relative burdens of production and to the defendant's “burden of go-

ing forward” - reflect that the magistrate judge correctly understood the import

of identifying the matter as an affirmative defense and did not improperly shift

the ultimate burden of proof from the government to the defendant.

The magistrate judge correctly ruled that Lowry did not meet her initial burden of

showing that the affirmative defense of individual aboriginal right of occupancy

applied to her, as explained below. However, even if she met her burden by merely

raising the claim, without actually proving that she came within this exception

(as the district court apparently believed), the evidence at trial proved that she

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)











and her lineal ancestors did *23 not continuously occupy the parcel of her unlaw-

ful occupancy since before the land was withdrawn from entry, and therefore, the

evidence was sufficient to prove that she had no individual aboriginal occupancy

right. Consequently, she was not “otherwise authorized by federal law” to reside

there, and she was not excused from obtaining a special-use authorization.

2. Distinguishing Tribal from Individual Aboriginal Occupancy Rights

The magistrate judge explained that the Karuk Tribe lacked tribal occupancy rights

and Lowry could not rely on tribal rights. E.R. Tab 21 at 12 n. 15, 13:4-8,

14:14-19, 14:23-24, 15 n. 19. The district court agreed. E.R. Tab 27 at 15-16,

21:2323:5. As both courts recognized, it is important to distinguish the individu-

al aboriginal right of occupancy from the tribal right of occupancy, a judicially

created doctrine which was recognized earlier and out of which the doctrine of in-

dividual aboriginal right of occupancy grew. Although Lowry professes to rely on

the doctrine of individual aboriginal right of occupancy, she appears to argue

that occupancy under that doctrine should be interpreted as broadly as a tribal

right of occupancy. A.O.B. 27-31. She is mistaken, as the district court ruled.

E.R. Tab 27 at 21:23-23:5.

a. The Tribal Right of Occupancy

Aboriginal occupancy began as an equitable remedy recognizing a limited tribal or

group right of occupancy. See *24 Minnesota Chippewa Tribe v. United States, 315

F.2d 906, 913-14 (Ct. Cl. 1963). It arises from an Indian tribe's exclusive and

continuous use and occupancy of land from time immemorial or for a long time.

Strong v. United States, 518 F.2d 556, 560 (Ct. Cl. 1975). It is a permissive pos-

sessory and temporary right - a mere possession - granted by the federal govern-

ment and is not recognized as ownership. Gemmill, 535 F.2d at 1147; United States

v. Atlantic Richfield Co., 435 F. Supp. 1009, 1029-31 (D. Alaska 1977); Tee-

Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955). Courts recognize that

aboriginal rights may be extinguished, and thereby taken, by the United States at

any time without compensation and without consent of the Indians. Gemmill, 535

F.2d at 1147; Atlantic Richfield Co., 435 F. Supp. at 1029-31. When Congress

clearly intends to extinguish Indian title, the courts will not inquire into the

means or propriety of the action:

Extinguishment of Indian title based on aboriginal title based on aboriginal pos-

session is of course a different matter. The power of Congress in that regard is

supreme. The manner, method and time of such extinguishment raise political, not

justiciable, issues. As stated by Chief Justice Marshall in Johnson v. M'Intosh,

[8 Wheat. 543, 5 L.Ed. 681 (1823)] ‘the exclusive right of the United States to

extinguish’ Indian title has never been doubted. And whether it be done by treaty,

by the sword, by purchase, by the exercise of complete dominion adverse to the

right of occupancy or otherwise, its justness is not open for inquiry in the

courts.

United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 347 (1941).

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*25 As the magistrate judge recognized, the Karuk tribe's aboriginal rights to oc-

cupy their ancestral lands “have long been extinguished.” E.R. Tab 21 at 12 n. 15,

13:6-8, 14:13-18, 14:23-24, 15:1-10 and n. 19; see also United States v. Kent, 945

F.2d 1441, 1442-43 (9th Cir. 1991) (“Any tribal aboriginal title that the Karuks

possessed in the area involved here has been extinguished; Congress has set aside

compensation for the Tribe for the taking of its lands.”).[FN13]

Lowry seems to

recognize on this appeal that her claimed individual right of occupancy may not

derive from any occupancy right of the Karuk Tribe. Instead, she improperly at-

tempts to import concepts of tribal occupancy into this individual occupancy case.

A.O.B. 7-10, 20-22, 27-28. This attempt includes her reliance on evidence that her

lineal ancestors used a much larger area - “the Oak Bottom area” - and inhabited

areas, such as Allotment 280, nearby the parcel Lowry has occupied since April

1983. A.O.B. 7, 10-13.[FN14]

FN13. The magistrate judge also cited Super v. Work, 3 F.2d 90 (D.C. Cir.

1925), and Donahue v. Butz, 363 F. Supp. 1316 (N.D. Cal. 1973), which ex-

plain how those rights were extinguished. E.R. Tab 21 at 14:17-18.

FN14. She appears to have abandoned an approach she took at trial, in which

she attempted to expand the definition of “lineal ancestors” to include the

entire “Tripp family” - including collateral relatives who are not in her

direct line of descent.

b. The Individual Aboriginal Right of Occupancy

As noted, an aboriginal - or Indian - right of occupancy is commonly viewed as a

tribal or group right, as opposed to an *26 individual Indian right. See United

States v. Dann, 873 F.2d 1189, 1195 (9th Cir. 1989) (“Dann III”), citing Oneida

Indian Nation v. County of Oneida, 414 U.S. 661, 667 (1974); see also Minnesota

Chippewa, 315 F.2d at 913-14. However, the Supreme Court and this Court have re-

cognized that individual aboriginal rights may exist in certain circumstances.

United States v. Dann, 470 U.S. 39, 50 (1985), citing Cramer v. United States, 261

U.S. 219, 227 (1923), and Santa Fe Pacific R. Co., 314 U.S. at 357-58; Dann III,

873 F.2d at 1195-96. As with the tribal right, an individual aboriginal occupancy

right is a possessory right, not an ownership, and the individual remains subject

to reasonable regulation necessary for the conservation of public resources. Dann

III, 873 F.2d at 1200.

To establish individual aboriginal occupancy rights, an Indian must show that her

lineal ancestors held and occupied, as individuals, a particular tract of land, to

the exclusion of all others, from time immemorial, and that this occupancy right

had never been extinguished. Dann III, 873 F.2d at 1195-96. In Dann III, this

Court held initially that the Danns did not even assert that they held such indi-

vidual aboriginal occupancy rights from time immemorial, but instead claimed

through their tribe. Id. at 1196. This they could not do because the tribe's

rights had been extinguished. Id.

*27 The Court considered whether the Danns could claim, as did the three Indians

in Cramer, that they had settled and claimed the land and actually used, occupied,

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and enclosed it, before it was withdrawn from entry. Id. at 1196-98. The Dann III

Court held that the public land policies that underlay the decision in Cramer no

longer applied, and that an Indian could no longer gain an occupancy right “simply

by occupying public land, as the Indians did in Cramer.” Id. at 1198. Therefore,

individual occupancy rights may be judicially recognized only if they arose before

the lands were withdrawn from entry. Id. The Court remanded the issue because the

district court failed to consider the date of withdrawal, instead focusing on the

date when the tribal claim was paid as a result of the earlier taking and extin-

guishment of the tribal right. Id. at 1198-99.

The Dann III Court agreed with the district court that the Danns had established

an individual aboriginal use right to graze cattle and horses on open range

lands[FN15] that were later incorporated into grazing districts, because the Danns

and their lineal ancestors continuously exercised those rights before the lands

were withdrawn from open grazing under the Taylor Grazing Act. Id. at 1199-1200.

However, this Court limited the Danns' grazing right to the number and type of an-

imals grazed by them or *28 their lineal ancestors at the time the lands were in-

corporated into grazing districts. Id. at 1200. The Court also explained that the

Danns' grazing rights were subject to reasonable regulation by the Bureau of Land

Management. Id.

FN15. This is a different right than the individual aboriginal right of res-

idential occupancy.

This Court again explored the issue of individual aboriginal occupancy rights in

Kent. Kent is remarkably similar to this case. Lavon Kent,[FN16]

a member of the

Karuk tribe, was convicted of unlawful residential occupancy of a site at Sandy

Bar Creek within the Klamath National Forest. Kent, 945 F.2d 1441. The district

court rejected her contention that she was entitled to occupy the land based on

individual aboriginal rights. Kent, 945 F.2d at 1442-43.

FN16. Trial testimony in the instant case showed that Lavon Kent lived with

and took care of Bessie Tripp in the early 1980s. R.T (5-23-05) at 131-32,

151, 168; R.T. (5-24-05) at 10, 21.

This Court agreed, explaining that Kent had no special use authorization and that

the Forest Service had not granted her or anyone else an allotment for the site

she occupied. Id. at 1443. Kent's great-grandmother lived at Sandy Bar Creek con-

tinuously until her death in 1870; however, no blood relative lived at the site

from 1870 to 1984. Id. Kent's mother lived a mile away until 1939, and other rel-

atives have allotments just west of the site. Id. Since time immemorial, Karuk In-

dians used an adjacent road to participate in a Karuk ceremony. Id. None of this

was enough to entitle Kent to an individual aboriginal right of *29 occupancy, be-

cause she could not show that she and her lineal ancestors continuously occupied

the claimed parcel as individuals, and that the period of continuous occupancy

commenced before the land was withdrawn from entry. Id. at 1444. She commenced her

occupancy in 1984, “long after her tribe's title to the land had been extin-

guished, and long after the land had been established as a National Forest, closed

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)






to public entry and settlement.” Id.

Although the Court respected Kent's attachment to the land because of family, cul-

ture, and tradition, it was unwilling to extend the individual aboriginal occu-

pancy doctrine to all Indians who return to the land, instead reserving its ap-

plication to those who maintain a presence there. Id. The Court also clarified

that the issuance of a certificate of eligibility conferred no right upon Kent.

Id. at 1445 n. 5. Finally, the Court ruled that 36 C.F.R. § 261.10(b) contains no

mens rea element. Id. at 1445-46.

3. The Magistrate Judge Correctly Ruled that Lowry Does Not Meet the Requirements

to Come Within the Judicially Created Doctrine of Individual Aboriginal Right of

Occupancy

Several independent and interdependent bases justify the magistrate judge's de-

termination that Lowry did not show continuous occupancy by her and her lineal an-

cestors to the exclusion of others since before the occupied area was withdrawn

from entry. First, Lowry's area of actual occupancy is *30 dramatically smaller

than the claimed area of occupancy within the meaning of the individual aboriginal

occupancy doctrine. Second, at least 53 years separated Lowry's great-

great-grandmother's departure from the site and Lowry's establishment of residency

there. Third, during that gap, the land was withdrawn from entry both by the cre-

ation of the Klamath National Forest and by the designation of it as part of the

Klamath Wild and Scenic River corridor. Fourth, the Tripp family already has an

allotment. Fifth, the nature of the occupancy has not been exclusive. Each of

these issues standing alone justifies the magistrate judge's ruling; together,

they utterly defeat Lowry's claimed occupancy right.[FN17]

FN17. If the magistrate judge's ruling was correctly based on any one of the

factors, or even a different factor not specified, this Court should uphold

his ruling. An appellate court may affirm a trial court's ruling on any

ground supported by the record even if it differs from the rationale of the

lower court. Paradis v. Arave, 240 F.3d 1169, 1175-76 (9th Cir. 2001).

a. Lowry's Area of Actual Occupancy Is Dramatically Smaller than the Claimed Area

of Occupancy Within the Meaning of the Individual Aboriginal Occupancy Doctrine

The magistrate judge recognized the difficulty of defining the parameters of

Lowry's occupancy on National Forest system land, because of her unwarranted at-

tempt to expand her occupancy to encompass the entire ancient village site. E.R.

Tab 21 at 4. Aside from the double-wide mobile home in which she resides, *31

Lowry has numerous items of personal property strewn over roughly a five-acre

area, including single-wide mobile homes, travel trailers, automobiles, and wooden

sheds. Id. at 4-5 and n. 3. The government's evidence at trial established this

area of occupancy. E.R. Tab 21 at 4:14-5:1 and attached map; S.E.R. Tab 2.

However, Lowry has described her area of occupancy expansively, as incorporating

the entire area of Vunxarrak, the ancestral Karuk village, stretching north from

her mobile home to Salmon River Road, south to the Salmon River, west to the

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)





bluffs, and east to the upper end or creek area; this larger area covers approxim-

ately a mile-and-a-half west-to-east and half-a-mile north-to-south, or between 45

and 110 acres, and more than half of one legal subdivision of land and about a

quarter of another legal subdivision. E.R. Tab 21 at 5-6 n. 4-5; S.E.R. Tab 14 at

18, 96-98; S.E.R. Tab 15 at 54, 107-8, 120-23; S.E.R. Tab 2.[FN18]

This larger

territory is the area she refers to as “the Oak Bottom area.” See, e.g., A.O.B. at

7. Lowry has not shown continuous and exclusive occupancy by herself and her lin-

eal ancestors of this larger area (or even the five-acre parcel she actually occu-

pies).

FN18. Retired Forest Service Lands and Minerals Officer Harry Frey identi-

fied on Government's Exhibit 1 the boundaries of the ancient village site

according to the testimony of Rhonda Tripp, Jeanerette Jacups-Johnny, and

Karen Lowry. S.E.R. Tab 2; S.E.R. Tab 15 at 106-8, 120-23.

*32 In Cramer, the United States sued on behalf of three Indians who claimed they

had occupied continuously since before 1859 lands that the United States sub-

sequently granted to the Central Pacific Railway Company. Cramer, 261 U.S. at 224.

After the trial, the district court found in favor of the Indians, granting them a

right of occupancy, which it confined to 175 acres actually enclosed by their fen-

cing and upon which they had resided, constructed and maintained houses and other

outbuildings, and irrigated and cultivated, instead of the entire two sections of

land (legal subdivisions) they claimed. Id. at 225-26. This Court agreed with the

district court, except that it extended the right of possession to the entire 360

acres comprising the two legal subdivisions. Id. at 226.

The Supreme Court acknowledged that Indians were not historically entitled to ex-

ercise homestead privileges until Congress granted that right in 1875. Id. at

226-27. The Court recognized the federal policy of respecting the Indian right of

occupancy, which was normally exercised in favor of nomadic tribal occupancy. Id.

at 227. The Court thought it appropriate to extend this equitable doctrine to in-

dividual Indian occupancy to encourage Indians to “forsake [their] wandering

habits and adopt those of civilized life.” Id. Granting possessory rights would

reward Indians who abandoned their nomadic ways and settled down in particular

locations. Id. at 228-29. However, the *33 Supreme Court reversed this Court's ex-

tension of that possessory right to the entire area of the two legal subdivisions

and affirmed the district court's confining of the possessory right to the lands

“actually inclosed” plus a small portion that had been improved but not actually

enclosed. Id. at 234. The Indians “rights are confined to the limits of actual oc-

cupancy and cannot be extended constructively to other lands never possessed or

claimed, simply because they form part of the same legal subdivision.” Id. at 235.

“We do not understand that the mere fact that a man enters upon a portion of the

public land, and builds or occupies a house or corral on a small part of it, gives

him any claim to the whole subdivision” even when he cuts hay on part of it. Id.,

quoting Garrison v. Sampson, 15 Cal. 93, 95. Similarly, in Dann III, the Indians'

grazing right could not extend beyond the number and types of animals that had

been grazed by them and their lineal ancestors before the open range was withdrawn

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)






and incorporated into grazing districts. Dann III, 873 F.2d at 1200.

Likewise here: Lowry has not shown continuous residential occupancy by herself and

her lineal ancestors to the exclusion of all others since before the land was

withdrawn from entry on the entire area of land encompassed by the ancestral vil-

lage, which amounts to substantially more than half of a legal subdivision of

land. To the extent that Lowry's lineal ancestor, Bessie Tripp, *34 abandoned her

nomadic lifestyle and settled down, she did so on Allotment 280, not on the site

of Lowry's current residency and not on the entire ancestral village site.

b. The Occupancy Was Not Continuous

Lowry's last lineal ancestor to occupy the trespass site was her great-great

grandmother, Mahkhawa'da, who was forced off the property in approximately 1898 by

Joe Wilson, a non-Indian miner. E.R. Tab 21 at 9-10; E.R. Tab 14 at 284-85; E.R.

Tab 15; E.R. Tab 18 at 2; S.E.R. Tab 7 at 228; S.E.R. Tab 15 at 55. Upon Wilson's

death in 1915, his brothers took over his mining claim; it was mined by Robert

Younger, William Harris, and Frank Grant until World War II. E.R. Tab 14 at 285.

According to the interview of Bessie Tripp, the house was at one time used as a

post office, and the miners who ousted her grandmother held stag dances there and

lived there until it burned down. E.R. Tab 21 at 9-10 and n. 13; E.R. Tab 15 at

361; R.T. (5-24-05) at 168-69. In contradiction, Rhonda Tripp and Lowry both gave

evidence that after the miners left, Mahkhawa'da moved back into that house. E.R.

Tab 14 at 121:6; S.E.R. Tab 7 at 228; S.E.R. Tab 15 at 55. This evidentiary con-

flict does not matter - the lineal chain of occupancy was broken because Bessie

Tripp never lived in that house, having been born on Allotment 280, where she

resided until she died. E.R. Tab 5 at 121-22.

*35 The magistrate judge considered the residency of Ellen Goodwin in a house near

Mahkhawa'da's house until she left in 1929. E.R. Tab 21 at 10 n. 13 and at 13 n.

18. However, Ellen Goodwin was not a lineal ancestor of Lowry, but a second cousin

who was at best a collateral ascendent. E.R. 8 at 45; S.E.R. Tab 6 at 245. There-

fore, the magistrate judge was being overly generous in noting that between Ellen

Goodwin's departure in 1929 and Lowry's arrival in 1983, a “period of fifty-three

years remain unaccounted for.” E.R. Tab 21 at 13 n. 18. Instead, the unaccounted

for period is closer to 68 years: from 1915, the latest date when miners appar-

ently resided in Mahkhawa'da's house, to 1983, when Lowry initiated her continuous

occupancy at the site.[FN19]

FN19. This period is necessarily inexact, because Lowry presented no evid-

ence of when Mahkawa'da died, when her house burned down, or when the miners

moved out and she allegedly moved back into the house. If the miners lived

there until World War II in the 1940s, and Mahkawa'da had already died, then

the gap is more like 85 years - from approximately 1898, when Wilson estab-

lished the Oak Bottom placer mine and ousted Mahkawa'da, until 1983 when

Lowry moved in. It is likely that Mahkawa'da had already died before 1914,

when Oak Bottom Jack applied for Allotment 280. Rhonda Tripp testified that

Oak Bottom Jack began living on the site of Allotment 280 when Nu'Pas was

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)




dying and had to go live with his daughter Mary Ike at Ike's Falls; Mrs.

Tripp did not mention Mahkawa'da in connection with that event. R.T.

(5-23-05) at 119. There is no other mention of Mahkawa'da residing there

around the time of the allotment application and approval. Mrs. Tripp also

testified that Bessie Tripp's grandfather (Nu'Pas) raised Bessie after her

parents died; again, she didn't mention Bessie's grandmother, Mahkawa'da.

Id. at 159.

The magistrate judge also appears to have at least considered giving Lowry credit

for Bessie Tripp's occupancy on *36 the nearby Allotment 280, although that is not

the same parcel as the trespass site Lowry occupies. The magistrate judge ruled

that Bessie Tripp's occupancy at Oak Bottom was not continuous, but instead was

intermittent, until 1926 or 1928. E.R. Tab 21 at 7. The ruling that her occupancy

was not continuous until at least 1926 is supported by the record. In 1899, Bessie

Tripp went to school in Hoopa, staying there with her aunt. S.E.R. Tab 14 at 55,

158-59. When Bessie's grandfather was ill, she stayed with him and his sister in

Ike's Falls on the Klamath River, about five miles away. Id. at 159-60. Bessie

traveled with her husband William “Pop” Tripp when he worked in the mines “all

over” including up and down the Salmon River, from 1901 until 1926. Id. at 56;

158.

The magistrate judge noticed Lowry's attempt “to downplay or minimize Bessie's

many absences from Oak Bottom during her lifetime by emphasizing that Bessie al-

ways considered Oak Bottom to be her true home[.]” E.R. Tab 21 at 7. The magis-

trate judge acknowledged that, under Cramer and Dann III, short, temporary ab-

sences would not defeat an individual aboriginal occupancy right, but he was

“unable to determine that Bessie's absences before 1926 were inconsequential.” Id.

at 8. Her absences for school and employment were “not events of short duration or

degree.” Id. The district court agreed. E.R. Tab 27 at 25:515. In any event, be-

cause Bessie Tripp lived on Allotment 280 *37 from 1926 to 1982, rather than on

the parcel where Lowry resides, Lowry cannot demonstrate continuous occupancy by

herself and her lineal ancestors on the trespass site between (roughly) 1915 and

1983. S.E.R. Tab 16.

Lowry attempts to apply old tribal occupancy cases to this modern individual occu-

pancy claim to define the concept of occupancy. A.O.B. at 20-22. However, the pre-

cedent this Court must apply - as did the magistrate judge and the district court

- is recent Ninth Circuit case law addressing individual aboriginal occupancy

claims, specifically, Dann III and Kent. Just as this Court refused to apply the

doctrine when no blood relative lived at the site from Lavon Kent's great-

grandmother's death in 1870 to Kent's “return” to the land in 1984 (Kent, 945 F.2d

at 1443), so the magistrate judge and district court here correctly refused to ap-

ply the doctrine where no lineal ancestor lived at the site of Karen Lowry's occu-

pancy from Mahkhawa'da's ejection in 1898 until Lowry's “return” to the site in

1983.

c. The Land Was Withdrawn from Entry

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In 1989, this Court held that “[t]he policy of public land settlement that under-

lay Cramer [decided in 1923] no longer exists.” Dann III, 873 F.2d at 1198. There-

fore, individual aboriginal occupancy rights must have their inception before the

lands are withdrawn from entry. Id.

*38 President Theodore Roosevelt created the Klamath National Forest by a proclam-

ation issued on May 6, 1905. 34 Stat. 3001 (1905). In 1910, Congress passed the

Forest Allotment Act, which created a procedure for eligible Indians to apply for

allotments on National Forest land.[FN20]

25 U.S.C. § 337. Those actions, together

with the 1962 repeal of the Forest Homestead Act (which had opened the National

Forests to settlement from 1906 to 1962) precluded subsequent settlement. Kent,

945 F.2d at 1444 n. 3.

FN20. See also Hoglund v. Lane, 44 App. D.C. 310 (D.C. Cir. 1916), aff'd 244

U.S. 174 (1917) (recognizing that President Roosevelt's proclamation creat-

ing the Klamath National Forest was authorized by the Public Land Act of

March 3, 1891 (26 Stat. at L. 1095, chap. 561, Comp. Stat. 1913, sec. 5116),

which withdrew the land encompassed therein from entry and settlement - ex-

cept by those who had valid pre-existing rights).

The Salmon River was made part of the Wild & Scenic River System on January 19,

1981, and designated as a recreational river area. S.E.R. Tab 12. The Wild and

Scenic Rivers Act of 1968 provides for the preservation of those rivers that have

remarkable values that are scenic, recreational, geological, cultural, or environ-

mentally precious for wildlife and fisheries. That Act's purpose is to preserve

the condition of these areas for present and future generations. Areas of land

designated under the Act were withdrawn from entry, sale, or other disposition un-

der the public laws of the United States. 16 U.S.C. § 1279. Designation of a river

under the Act withdraws public lands which constitute the bed or bank, or which

are *39 within one-quarter mile of the bank, of any river which is listed in the

Act at 16 U.S.C. § 1276(a), from entry, sale, or other disposition under the pub-

lic land laws of the United States. Only valid existing rights encumbering the

land, which rights were vested prior to January 19, 1981, are exempt from this

provision. 16 U.S.C. § 1271 et seq.

Because neither Mahkhawa'da nor any other lineal ancestor remained continuously on

the trespass site since before 1910 through Lowry's return in 1983, Lowry is not

entitled to claim an individual aboriginal occupancy right. Kent, 945 F.2d at

1443. Bessie Tripp's presence on a different parcel (Allotment 280) is insuffi-

cient to establish continuous occupancy of the trespass site. Id. Even if it were

somehow sufficient, Lowry cannot overcome the gaps in Bessie Tripp's occupancy

between 1899 and 1926, and between her December 1982 death and Lowry's April 1983

arrival. Even if the creation of the Klamath National Forest had not withdrawn the

site from entry, the 1981 designation of the Salmon River as a Wild and Scenic

River resulted in the withdrawal of the site of Lowry's unlawful occupancy, which

is within the river corridor as designated. The center line of Highway 93 is the

boundary of the Wild and Scenic River corridor, and Lowry's residence lies between

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)

















the river and Highway 93. R.T. (5-23-05) at 118, 126; S.E.R. Tab 12.

*40 d. The Tripp Family Already Has an Allotment

Regardless of whether Allotment 280 should have been issued to Bessie Tripp in-

stead of Oak Bottom Jack, the Tripp family has in fact held that allotment since

its issuance. It is not disputed that Oak Bottom Jack applied for the allotment in

1914, he died in 1920, and the allotment was approved in 1929. E.R. Tab 21 at 8.

Bessie Tripp was born on that site and resided there intermittently until 1926,

after which she occupied it continuously until her December 1982 death. Id. The

trial evidence showed that various of her children also resided there with her,

including her son George, who lived there until his death two to five years before

the trial. S.E.R. Tab 14 at 82, 168; S.E.R. Tab 15 at 3. Lowry's brother, Harold

Tripp, currently resides on Allotment 280. S.E.R. Tab 15 at 7, 30, 130.

However, Lowry may not rely upon her relatives' occupancy of Allotment 280 to es-

tablish continuous occupancy of the nearby trespass site. Occupation by lineal an-

cestors “near” the site applied for does not meet the continuous occupancy re-

quirement. Kent, 945 F.2d at 1442-43 (Court was unwilling to extend the individual

aboriginal title doctrine to Indians who return to the land, instead reserving its

application to those who maintained a presence there; that mother lived a mile

away and other relatives had allotments nearby was insufficient); Finch v. United

States, 387 F.2d 13, 15 (10th Cir. 1967) (“It seems an impalpable *41 contention

that Congress intended to place the public domain beyond discretionary control and

vest in individual Indian applicants an absolute right to the land of their

choice.”); Hopkins v. United States, 414 F.2d 464 (9th Cir. 1969) (an Indian does

not acquire a vested right to an allotment by selecting land, settling upon it,

and then filing an application for an allotment).

If the continuous occupancy requirement could be established by having lineal an-

cestors “within the vicinity of,” instead of “on” the site, each new generation

could move a little further from the site originally occupied by lineal ancestors.

Eventually, all public domain would be swallowed up by individual aboriginal occu-

pancy claims. As the magistrate judge recognized:

To adopt Defendant's argument that her occupancy was simply an extension of

Bessie's would translate into individual aboriginal claims being created by

“spin-off” or “sprouting.” Certainly no case law supports this notion, but more

importantly, common sense would not permit such an expansion of Cramer or Dann

III. Otherwise, entire villages or communities could be created by simply occupy-

ing an area exterior to an existing Native American allotment.

E.R. Tab 21 at 14:7-12. Thus, case law, public policy, and common sense dictate

the rejection of Lowry's spin-off attempt.

e. The Occupancy Has Not Been Exclusive

The trial testimony demonstrated that Lowry and her witnesses lacked a fundamental

understanding of the concept of occupancy by a lineal family to the exclusion of

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all others. *42 Lowry, Rhonda Tripp, and Jeanerette Jacups-Johnny all testified

that various members of the tribe and extended Tripp family - not just those in

Lowry's lineal ascendency and descendency - used the land. R.T. (5-23-05) at

61-62, 65-66, 70, 108-15, 129-32, 143-45; R.T. (5-24-05) at 3, 16, 21, 29-31,

33-35. However, collecting fruits, berries, nuts, and roots; hunting; fishing; and

performing tribal ceremonies on the ancient village site are not the type of indi-

vidual occupancy behaviors contemplated by the Cramer Court. These behaviors are

not limited to residential areas. Instead - except for tribal ceremonies that are

tied to particular locations and land formations - these behaviors may be conduc-

ted on any area of the forest where the items grow or where game or fish may be

found. E.R. Tab 21 at 11:2-13; E.R. Tab 27 at 26:22-26. As to the tribal ceremon-

ies, residential occupancy to the exclusion of all others - such as by fencing,

constructing residential buildings, or cultivating crops - would actually inhibit

or preclude the ceremonies by denying access to the ceremonial sites.

Neither Lowry nor her lineal ancestors cultivated crops. There was evidence that,

although Nu'Pas circulated through the area encompassed by Vunxarrak planting

apple trees, he also did so up and down the Salmon River and also handed out ve-

getable seeds. E.R. Tab 17 at 254. The apple trees near Lowry's residence have not

been maintained; they are not planted in rows *43 as an orchard; some sprouted up

from seeds from fallen apples; and the oldest trees are at the end of their useful

life. R.T. (5-24-06) at 73-74, 84-102.

There was substantial evidence presented through testimony and documents that the

claimed area was also used by the public and by miners during the period of al-

leged exclusive occupancy. See, e.g., E.R. Tab 14 at 285; E.R. Tab 18 at p. 2;

R.T. (5-24-05) at 56-57. In a 1979 interview of Bessie Tripp by a Forest Service

Anthropologist, she said that the site of her grandmother's house was used at one

point for a post office and for miners holding stag dances. E.R. Tab 15 at 361.

The 1981 archeological report of Forest Service Archeologist Jim Rock demonstrated

that mining was active on the site through World War II, and that the site had

been used recreationally by the public for river access, swimming, fishing and

camping for at least the preceding 70 years. E.R. Tab 14 at 284-85. Lowry stated

in her August 17, 1990, letter to Forest Supervisor Holder that most of the public

who use the river stay off the site -which implies that not all of them do. S.E.R.

Tab 7.

Lowry testified she did not cut down trees; instead, she said “there's a lot of

men on that property and they are sort of like Mexican people. They look at a wo-

man like, you just stay in the house and do your own thing and we're going to do

whatever we want to do. And a lot of things go on there that I'm not even *44

aware of[.]” S.E.R. Tab 15 at 21:21-22:2. This is a denial of exclusive use.

Lowry claimed the old cars that were stacked up that she had recently had hauled

away were put there by many friends and family members. Id. at 69. Lowry's convic-

tion for perjury stemmed from an allegation that she asked someone else (Gary

Rails) to “take the fall” for her for some drugs that were found in the residence

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)


where she currently resides. Id. at 70-72. Lowry testified that, in fact, Gary

Rails was responsible for the drugs and she implied she had no knowledge or con-

trol of his conduct on her property. Id. at 72. In other words, Lowry denied that

she used the property exclusively.

Putting up fences is one way to demonstrate open, notorious control of a site to

the exclusion of all others. Cramer, 261 U.S. at 234-36; Dann III, 873 F.3d at

1199. The fences that exist near Lowry's trespass site consist of (1) a 5' high,

200' long linear fence that Lowry constructed to block the dust when her brother

drives down the road too fast; (2) another linear fence at the top of allotment

280 to keep livestock out of a creek down a steep embankment;[FN21]

and (3)

Lowry's corral. S.E.R. Tab 15 at 22, 130-32; R.T. (5-24-05) at 108-11, 123-25;

S.E.R. *45 Tab 3 (Govt. Exh. 21P), Tab 4. None of these fences serves to enclose

the area of occupancy or to exclude others. Historically the occupancy area has

been un-fenced. Jeanerette Jacups-Johnny testified Bessie Tripp once had a fence

as a barricade to keep people from driving on her flowers. S.E.R. Tab 14 at 91.

Rhonda Tripp said that Bessie Tripp never talked about there being any fences, and

that they specifically chose not to fence the grave sites because doing so would

advertise them to the public as places to dig up Indian remains. Id. at 138, 169.

In the Forest Service Anthropologist's interview, Bessie Tripp said that campers

had desecrated grave sites surrounded by a fence and had damaged other property.

E.R. Tab 15 at 362.

FN21. Harry Frey testified that this fence runs from corner marker 5 toward

corner marker 6 of Allotment 280; he identified corner markers 1, 5, and 6

on Government's Trial Exhibit 1. S.E.R. Tab 2; R.T. (5-24-05) at 113-14,

123-25.

The evidence demonstrates that neither the defendant nor her lineal ancestors oc-

cupied her trespass site exclusively. Therefore, both the magistrate judge and the

district court properly held that the evidence did not demonstrate continuous, ex-

clusive occupancy by the defendant and her lineal ancestors since before the land

was withdrawn. E.R. Tab 21 at 7-14; E.R. Tab 27 at 23-27. There was ample evidence

to support the magistrate judge's decision that Lowry did not come within the re-

quirements of the individual aboriginal occupancy right *46 doctrine as an affirm-

ative defense, as well as the district court's affirmance.[FN22]

FN22. By eliciting the testimony through cross-examination of Lowry's wit-

nesses and by presenting the government's trial exhibits, the government did

dispite Lowry's claim and did present evidence regarding the individual ab-

original right of occupancy, despite Lowry's assertion to the contrary.

A.O.B. at 29.

II. The Magistrate Judge Did Not Deny Lowry Due Process by Precluding Her Affirm-

ative Defense of Collaterally Attacking the Denial of her Application for an Indi-

an Allotment

The magistrate judge entered a pre-trial ruling granting the government's motion

in limine and barring her from presenting evidence on her affirmative defense of

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)




the allegedly improper denial of her allotment application. A.O.B. at 37; E.R. Tab

4, Tab 21 at 17:1-4; R.T. (5-18-05). Nevertheless, Lowry did present evidence re-

garding this matter. E.R. Tab 21 at 10:16-11:20 (citing Defendant's Exhibits C and

N and Defendant's trial testimony); A.O.B. 13-18 (citing numerous of Defendant's

trial exhibits). Moreover, the magistrate judge did consider that evidence and

analyze the issue in his memorandum of decision. E.R. Tab 21 at 10:16-11:1,

16:9-20:23. The opinion specifically recognized that evidence was received despite

the in limine ruling and that the magistrate judge would “nevertheless address the

arguments.” Id. at 17:1-5. The magistrate judge concluded that he lacked jurisdic-

tion to consider the claim. Id. at 18:15. The district court affirmed both the ma-

gistrate judge's *47 exclusion of the evidence and his conclusion that he lacked

jurisdiction to consider the claim. E.R. Tab 27 at 27:16-30:19

A. Standard of Review

Although an appellate court ordinarily reviews a trial court's ruling on a motion

in limine only for an abuse of discretion, the review is de novo when the ruling

precludes the presentation of a defense. United States v. Ross, 106 F.3d 896,

898-899 (9th Cir. 2000) (upholding preclusion of evidence of intent to pay back

stolen money, ruling intent to repay not a valid affirmative defense to embezzle-

ment charge). A trial court's determination regarding its jurisdiction is also re-

viewed de novo. United States v. Ortuño-Higareda, 450 F.3d 406, 409 (9th Cir.

2006).

B. Discussion

Lowry contends that the magistrate judge wrongly precluded her from presenting

evidence that the Forest Service improperly denied her Indian Allotment applica-

tion, and wrongly concluded that he lacked jurisdiction over that defense, and

that the district court incorrectly upheld those rulings. A.O.B 37-41. Lowry is

correct that the magistrate judge indicated he lacked jurisdiction to resolve her

equitable claims of ownership. E.R. Tab 21 at 18:4-6. She contends the magistrate

judge did not understand her claim. A.O.B. at 38. She argues that she was not ask-

ing the magistrate judge to enter a judgment holding that she *48 was entitled to

an Indian Allotment, but instead to consider whether the government had proved the

“not otherwise authorized by federal law” element in light of the alleged due pro-

cess violation in the handling of her allotment application. A.O.B. at 37. Earlier

in the opinion, the magistrate judge explained the difference between ruling on an

affirmative defense[FN23]

on the one hand and adjudicating title to federal land

on the other, and noted that he had jurisdiction for the former but not the lat-

ter. E.R. Tab 21 at 6:5-12. Therefore, it is quite evident the magistrate judge

understood the basis for Lowry's desire to present the evidence pertaining to the

alleged due process violation.

FN23. As it had regarding the individual aboriginal right of occupancy

claim, the district court erroneously concluded that Lowry's collateral at-

tack on the denial of her Indian Allotment application was not an affirmat-

ive defense; however, the district court held that the magistrate judge's

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)





preclusion of evidence was not an abuse of discretion because the government

met its burden of proving the absence of other federal law authorizing the

occupancy and excusing the special-use authorization requirement. E.R. Tab

27 at 30-31.

As the magistrate judge properly ruled, Lowry decided voluntarily to forego her

only avenue of challenge to the administrative ruling, the filing of a civil ac-

tion in district court pursuant to 25 U.S.C. § 337. E.R. Tab 21 at 19:7-11. Her

failure to seek review left the administrative ruling intact and . precluded her

from this later attempt to attack the ruling collaterally. Although her opening

brief is replete with *49 allegations that the Forest Service improperly handled

her allotment application and improperly told her she had no right to an adminis-

trative appeal, she utterly fails to address her own failure to file an action in

the district court.

Lowry's statement of facts sets forth her criticisms of the Forest Service's hand-

ling of her allotment application. A.O.B. at 13-18. All of these arguments were

presented extensively to the magistrate judge in the defendant's trial brief and

her exhibits. The government addressed all of them extensively in its trial brief

and exhibits. The same presentations were made to the district court on the dis-

trict appeal. The magistrate judge and district court both declined to address the

merits of this claim because her failure to pursue a district court civil action

deprived the court of jurisdiction over her collateral attack. At issue in the

trial was whether she was “otherwise authorized federal law” to occupy the land

and thus excused from obtaining a special-use authorization. Whether she was in

fact denied due process in the administrative process would not be relevant unless

she could show that she was entitled to an allotment, which would have been gran-

ted to her had she received due process. E.R. Tab 27 at 30:8-14. She cannot make

this showing. Moreover, the magistrate judge and district court correctly ruled

that her collateral attack is foreclosed by her voluntary relinquishment of her

right to obtain judicial review *50 of the final decision by the Secretary of the

Interior denying her Indian allotment application.

Indian allotments on public domain lands are typically made pursuant to the Indian

General Allotment Act of 1887, 25 U.S.C. §§ 331 et seq. However, when the allot-

ment requested is on National Forest System lands, it is processed under the

Forest Allotment Act of 1910, 25 U.S.C. § 337. The purpose of the Forest Allotment

Act is to ensure that the valuable timber resources within the National Forest

System are left to flourish, while simultaneously protecting the rights of Indians

who had consistently lived and relied on the resources to continue to do so. To

effectuate Congress' articulated purpose, courts have held that it would be a

breach of the government's trust duties owed to Indians to authorize an allotment

of land that was so deficient in resources as to be unable to support a family.

Saulque v. United States, 663 F.2d 968, 975 (9th Cir. 1981) (“It should be obvious

that this trust relationship was the very reason why neither Congress nor the

President would allow an allotment of land to be granted to an Indian where the

land was not fit for agriculture and would not support the Indian family. To do

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)







otherwise would result in a great hardship and injustice to the Indian and his de-

pendents”) .[FN24]

FN24. Such cases as Saulque involve a different allotment provision, but

section 337 authorizes allotments on National Forests “in conformity with

the general allotment laws.” On appeal, Lowry does not challenge the magis-

trate judge's holding that there was no breach of trust by the United

States. E.R. Tab 21 at 20-21.

*51 Under the Forest Allotment Act, the application process implements the same

policies and procedures of general allotment laws. 25 U.S.C. § 337. An Indian must

submit her application to the supervisor of the forest in which the applied-for

land is located. The supervisor forwards the application to the Secretary of Agri-

culture in order for the land to be surveyed and to determine if the applied-for

land is available for allotment. A determination is made whether the land is more

valuable for agricultural and grazing purposes than for the timber upon the area.

43 C.F.R. § 2533.1.

In deciding whether the land is more valuable for forest purposes than for agri-

culture or grazing, the Secretary of Agriculture relies on the unique skills of

the Forest Service, although it is the Secretary of the Interior who makes the fi-

nal determination. 25 U.S.C. § 337. If the land is found to be chiefly valuable

for the timber, the decision recommending against the allotment is forwarded by

the Secretary of Agriculture to the Secretary of the Interior, who will make the

ultimate determination and notify the applicant of the decision. 43 C.F.R. §

2533.2(a). The Interior Secretary's review of the application involves determin-

ing: (1) whether the applicant is a qualified Indian; (2) the applicant's historic

and continuous *52 interest; (3) whether the applied-for area is available for al-

lotment purposes; and (4) whether the applied-for land is more valuable for agri-

culture or grazing than for timber. 25 U.S.C. § 337.

There is no question that Lowry is a qualified Indian, as a member of the Karuk

Tribe whose eligibility was certified by the Bureau of Indian Affairs.[FN25]

E.R.

7. She does not challenge the magistrate judge's ruling that the certificate of

eligibility confers no rights to any particular parcel of land. E.R. Tab 21 at

19:22-20:6. That argument is foreclosed by precedent. See, e.g., Kent, 945 F.2d at

1444.

FN25. The certificate establishes only that the applicant is a recognized

member of an Indian tribe and does not already have an allotment. 43 C.F.R.

§ 2531(a) and (b). A certificate of eligibility is merely a confirmation of

Indian status and does not provide any rights to any particular parcel of

land. Hopkins, 414 F.2d at 467-68; La Rogue v. United States, 239 U.S. 62

(1915).

She does, however, imply that Forest Supervisor Barbara Holder considered improper

criteria. A.O.B. at 14-16. First, it was not improper for Holder to consider the

mining history of the land. An allotment may not be made for lands which are valu-

2007 WL 968224 (C.A.9) (Cite as: 2007 WL 968224)

















able for metalliferous minerals. 43 C.F.R. § 2533.0-8.

Second, Holder properly considered the historical occupancy of the site by Lowry

and her family, as the Forest Allotment Act requires that the actual settler and/

or the settler's ancestors must have continuously occupied the site from the time

it was *53 open for entry and settlement for allotment purposes - the same re-

quirement as for individual aboriginal occupancy rights, discussed above. 25

U.S.C. § 337. Because the site at issue here was reserved for public use in 1905

by Presidential Proclamation, the first time the site was open for entry and set-

tlement by an Indian was with the enactment of the Forest Allotment Act in 1910.

E.R. Tab 8 at 44. As discussed previously, Lowry has been unable to show that she

and her lineal ancestors have occupied the land continuously since before 1910.

Third, Holder properly considered the designation of the applied-for area under

the Wild and Scenic Rivers Act, because that relates to whether the site is avail-

able for allotment purposes. On January 19, 1981, the Klamath River and its tribu-

taries, including the Salmon River, were designated under the Wild and Scenic

Rivers Act. Because Lowry had no valid existing rights prior to or on January 19,

1981 - under the Forest Allotment Act, the individual aboriginal right of occu-

pancy, or any other law - the area's designation on that date under the Wild and

Scenic Rivers Act justified the denial of her allotment application.

Lowry is simply mistaken that the Forest Service improperly denied her a right to

appeal. A.O.B. at 18. Although she was properly precluded from pursuing an admin-

istrative appeal within the Forest Service and the Department of Agriculture, she

could *54 have filed a civil action in district court challenging the Secretary of

the Interior's final ruling denying her allotment application. By failing to file

such an action, she has forfeited her right to challenge the ruling collaterally

in this criminal prosecution.

Ordinarily, an applicant seeking to appeal a Department of Agriculture final de-

cision must exhaust all available administrative remedies before requesting judi-

cial review. 36 C.F.R. § 251.101. While Holder's July 13, 1990 denial recommenda-

tion was the final decision within the Department of Agriculture, Holder's de-

cision was not appealable. First, only certain parties may participate in the ap-

peals process. 36 C.F.R. § 251.86. Lowry could not appeal the Forest Supervisor's

decision because her application for an allotment was not submitted based upon a

written solicitation by the Forest Service; instead, she initiated the applica-

tion. Id.; E.R. Tab 6.

Second, a recommendation to another entity who makes the final decision is not ap-

pealable. 36 C.F.R. §§ 251.83; 211.18(b) (3) (the Forest Supervisor's decision

constituted “advisory, non-binding recommendations to [an] other agenc [y] which

[has] the final authority to implement the recommendations in question.”). The de-

cision made by the Forest Supervisor was *55 forwarded to the Secretary of the In-

terior, who made the final decision on November 14, 1990. E.R. Tabs 7, 8.

The Secretary of the Interior is authorized, in his or her discretion, to make al-

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lotments to Indians within National Forests. 25 U.S.C. § 337. Consideration of an

Indian allotment - including the area's availability for allotment - is not a mere

ministerial duty, but the exercise of discretionary authority and must be predic-

ated upon rational grounds. Hopkins, 414 F.2d 464; Finch, 387 F.2d 13. The proper

exercise of discretionary authority by the Secretary of Interior has often re-

ceived judicial sanction. See Udall v. Tallman, 380 U.S. 1 (1965); Duesing v. Ud-

all, 350 F.2d 748 (D.C. Cir. 1965); Pease v. Udall, 332 F.2d 62 (9th Cir. 1964);

Haley v. Seaton, 281 F.2d 620 (D.C. Cir. 1960). Where power to judicially review

an administrative decision is permitted, reviewing courts must treat agency ac-

tions with deference and respect administrative expertise. Chevron U.S.A. v. Nat-

ural Resources Defense Council, 467 U.S. 837 (1984).

District courts have original jurisdiction over any civil case involving the right

of an Indian to any land allotment. 28 U.S.C. § 1353. However, any such civil ac-

tion against the United States must be brought within six years after the right of

action first accrues. 28 U.S.C. § 2401(a); Christensen v. United States, 755 F.2d

705 (9th Cir 1985) (affirming judgment dismissing as barred by the six-year stat-

ute of limitations a *56 civil action seeking injunctive relief to force the Bur-

eau of Indian Affairs to provide access to an Indian allotment under 25 U.S.C. §

345). By not filing such a civil suit within six years, Lowry forfeited her right

to challenge the agency action by the Secretary of the Interior. If an adequate

opportunity for review is available, a losing party cannot obstruct the preclusive

effect of the administrative decision simply by foregoing the right to appeal.

Plaine v. McCabe, 797 F.2d 713, 719 n. 12 (9th Cir. 1986).

Finally, Lowry's reliance on United States v. Mendoza-Lopez, 481 U.S. 828 (1987),

is misplaced. A.O.B. 38-41. “When an administrative order is an element supporting

criminal punishment, due process requires giving the defendant an opportunity to

challenge the order collaterally if the order would otherwise be effectively insu-

lated from any judicial review.” Contreras v. Schiltgen, 122 F.3d 30, 32, (9th

Cir. 1997), aff'd after re-argument, 151 F.3d 906 (9th Cir. 1998), citing Mendoza-

Lopez, 481 U.S. at 837-39. As already explained, although Forest Supervisor Hold-

er's ruling was not appealable within the Department of Agriculture, the final de-

cision by the Secretary of the Interior was subject to judicial review, had Lowry

filed a civil action in district court within six years thereof. Therefore, the

magistrate judge correctly ruled that she voluntarily relinquished her right to

collaterally attack the *57 denial of her allotment application. The magistrate

judge and the district court both properly ruled that jurisdiction was lacking

over her collateral attack.

CONCLUSION

For the foregoing reasons, this Court should uphold the sound, thoughtful reason-

ing of the magistrate judge and affirm the convictions.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Karen Sue LOWRY, Defendant-Appel-

lant.

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END OF DOCUMENT

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