U.S. v. Kent, 88-1088
| Decision Date | 01 August 1990 |
| Docket Number | No. 88-1088,88-1088 |
| Citation | 912 F.2d 277 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lavon R. KENT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Abby Abinanti, San Francisco, Cal., for defendant-appellant.
Thomas J. Hopkins, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before PREGERSON, CANBY and BEEZER, Circuit Judges.
Lavon R. Kent, a Karuk Indian, appeals her conviction after a bench trial for unauthorized residential occupancy of national forest system land. Kent contends that the district court erred in holding that she had no individual aboriginal rights to occupy the land in question. She also contends, for the first time on appeal, (1) that she was entitled to occupy the land because the Department of the Interior had issued her a certificate of eligibility for an allotment in a national forest and because the relevant statute contemplated that an Indian would occupy the land before actually applying for an allotment, and (2) that the government breached its trust responsibility to her as an Indian by bringing criminal proceedings against her. For the reasons discussed below, we reverse.
In lieu of a trial, the matter was submitted to the district court on a set of stipulated facts. The stipulated facts include the following. Kent is a member of The United States Forest Service has not issued a special-use authorization to Kent. Nor has the Forest Service granted Kent or anyone else an allotment of land at Sandy Bar Creek. Kent, however, applied for and on June 18, 1982 received a certificate of eligibility from the Department of the Interior which certifies that she is a California Indian who is eligible to obtain an allotment of land in a national forest.
the federally recognized Karuk Indian Tribe. Monies had been set aside for taking the Karuk Tribe's lands by the United States government. As a result of this and other acts by the government, the Karuk Tribe's aboriginal title to the land at issue in this case was extinguished. The Karuk Tribe does not have a reservation. Kent moved onto a site at Sandy Bar Creek within the Klamath National Forest in February 1984, and has occupied and possessed that site since then. She has placed a trailer on the site, which she uses as her living quarters, and has planted a garden, which yields food for her sustenance. Kent excludes others from the site.
Kent's great-grandmother lived at Sandy Bar Creek continuously until her death in 1870. From approximately 1870 to 1984, no blood relative of Kent lived at Sandy Bar Creek. Kent's mother was born one mile from Sandy Bar Creek and lived there until 1939. Relatives of Kent have Indian allotments just west of Sandy Bar Creek. Every year "since time immemorial" Karuk Indians have traveled along a road immediately adjacent to where Kent resides on Sandy Bar Creek to participate in the Karuk ceremony of Pikiyowish (World Renewal).
On September 4, 1987, the district court issued a decision finding Kent guilty of unauthorized residential occupancy in violation of 16 U.S.C. Sec. 551 (1985) and 36 C.F.R. Sec. 261.10(b) (1988). 1 United States v. Kent, 679 F.Supp. 985 (E.D.Cal.1987). The district court subsequently sentenced Kent to a thirty-day jail term and ordered her to pay a $25.00 penalty assessment. The district court stayed its sentence pending appeal. Kent filed a timely appeal from her conviction on February 19, 1988.
Kent argues that the district court erred because its holding is based solely on the extinguishment of Kent's tribal aboriginal rights and because it failed to consider whether she had individual aboriginal rights based on her occupancy of the land. The district court expressly held "that the defendant does not possess an aboriginal right--through either her heritage as a Karuk Indian or her occupancy of the site in question --to use land in the Klamath National Forest for residential purposes." Kent, 679 F.Supp. at 987 (emphasis added). The district court clearly did consider whether Kent had any individual aboriginal rights to occupy the site at Sandy Bar Creek and correctly held that any such rights had been extinguished. See United States v. Dann, 873 F.2d 1189 (9th Cir.1989) (). We therefore affirm the district court's holding that Kent does not have any individual aboriginal rights to occupy the land at Sandy Bar Creek.
Kent also contends that she is authorized to occupy the land because her certificate of eligibility 2 entitles her to apply for and receive an allotment of land in a national forest and because the Forest Allotment Act of 1910, 25 U.S.C. Sec. 337 (1983), 3 contemplates that an Indian will occupy the land before applying for an allotment. 4 She argues that even though she is not automatically entitled to a site of her choice, the fact that she moved onto the land in question only after being certified eligible to receive an allotment of land within a national forest, coupled with the language of the allotment statute, shows that 36 C.F.R. Sec. 261.10(b) does not apply to her situation.
The government argues that Kent is not eligible to receive an allotment of land in a national forest because, as the government interprets the Forest Allotment Act (25 U.S.C. Sec. 337), only those Indians whose families have continuously occupied the site in question since passage of the Forest Allotment Act in 1910 are entitled to receive allotments of national forest system land. According to the government's interpretation, Kent is not eligible to receive an allotment because her ancestors were not already occupying the site at Sandy Bar Creek upon passage of the Forest Allotment Act and because her family has not continuously occupied the land ever since.
The government also interprets the Forest Allotment Act to mean--the plain language of the statute notwithstanding--that occupancy of national forest system land before applying for an allotment is prohibited by 16 U.S.C. Sec. 551 and 36 C.F.R. Sec. 261.10(b) unless the Indian can trace continuous ancestral occupancy of the site back to 1910. Again, according to the government's interpretation, because Kent cannot trace continuous familial occupancy of the site in question back to 1910, Kent may not occupy the land before receiving an allotment, even should she ultimately be entitled to one. The government makes these arguments even though the Forest Allotment Act and related regulations do not state that continuous occupancy is required and even though Kent has been certified eligible to receive an allotment of land in a national forest.
We need not reach the underlying questions whether Kent is eligible for an allotment or whether she is entitled to occupy the land before applying for an allotment because we find that the government failed to prove that Kent had the mens rea necessary to be found guilty of violating 36 C.F.R. Sec. 261.10(b). We also find that because Kent had insufficient notice that her conduct might be unlawful, due process will not permit her conviction to stand. 5
The information charging Kent with violating 16 U.S.C. Sec. 551 and 36 C.F.R. Sec. 261.10(b) alleged that Kent "did knowingly take possession of, occupy and otherwise use National Forest System lands for residential purposes without a special-use authorization, or as otherwise authorized by Federal law or regulation...." (Emphasis added.) 6 The mens rea embodied in "knowingly" requires the government to prove as an element of the offense that Kent "voluntarily and intentionally and not by accident or mistake" engaged in the prohibited conduct. United States v. Jewell, 532 F.2d 697, 699 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976); 1 Devitt and Blackmar, Federal Jury Practice and Instructions, Sec. 14.04 (3rd ed. 1977). In the present case, unresolved ambiguities (discussed below) in the law relating to allotments of national forest system land to Indians preclude a finding that Kent knew that her occupancy of the site at Sandy Bar Creek was not allowed by federal law.
Kent's certificate of eligibility, issued by the Department of the Interior, states that she is eligible to receive an allotment of land in a national forest. The Forest Allotment Act, 25 U.S.C. Sec. 337, states that the government is authorized to make allotments "to any Indian occupying, living on, or having improvements on land included within any national forest...." (Emphasis added.) The government argues that although Kent has a certificate of eligibility, she is not eligible to receive an allotment of land in a national forest. The government also argues that although the language of the Forest Allotment Act can be read to contemplate that an Indian will occupy the land before applying for an allotment, such prior occupancy is in fact illegal. But the certificate of eligibility and the Forest Allotment Act, on their face, contradict the government's contentions.
No reported cases have interpreted section 337 to determine which Indians are in fact entitled to an allotment or whether occupancy before applying for an allotment is allowed or required by the statute. These are open questions. Given the current unsettled state of the law and the information available to Kent, we find that Kent could reasonably believe that she was permitted by federal law to settle on the land at Sandy Bar Creek. The stipulated facts in this case and the government's unsupported interpretation of the applicable laws cannot sustain a finding beyond a reasonable doubt that Kent had the requisite mens rea to be convicted of unauthorized...
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U.S. v. Kent
...Circuit Judges. ORDER The petition of the United States for rehearing is GRANTED. Our prior decision in this case, United States v. Kent, 912 F.2d 277 (9th Cir.1990), is vacated and the opinion is withdrawn. The matter is submitted on rehearing upon the briefs and record previously filed, a......
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U.S. v. Osguthorpe, 2:97-CR-252B.
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