Ninth Circuit Says Karuk Defendant Failed To Establish Individual Aboriginal Title

United States v. Lowry, No. 06-10469 (9th Cir. Jan. 16, 2008).

Issue(s): Criminal Law > Criminal Procedure >> Burden of Proof >>> Elements; Criminal Law > Criminal Procedure >> Defenses >>> Individual Aboriginal Title

The Forest Service prohibits permanent human occupation of National Forest lands. The doctrine of individual aboriginal title, however, may prevent application of the regulation. Lowry, a Karuk Indian, and her family have lived on sections of the Klamath National Forest since at least the turn of the century. It is unclear, however, whether the family occupied Lowry’s parcel for an unbroken period of time. At Lowry’s trial for violating the regulation, did Lowry have to raise individual aboriginal title as an affirmative defense? If so, did she present enough evidence to establish title?

Ruling on this novel question, the Ninth Circuit said yes and no. The Forest Service regulation prohibits occupation “without special authorization.” Individual aboriginal title qualifies as a special authorization. Comparing similar regulations, the Court said that the statutory exception was not an element of the offense. The Court reasoned that Lowry was in a better position to “prove” aboriginal title. And placing the burden on the government to prove a negative would raise a presumption that Indians have individual aboriginal title. Because that result “might prove unworkable,” the Court held that Lowry had to raise aboriginal title as an affirmative defense.

To establish individual aboriginal title, the claimant must show actual possession through continuous occupancy, inclosure, or similar acts. Occupancy must also have begun before the government removed the land from settlement. Lowry could show that her lineal ancestors occupied an adjoining section of the forest between 1926 and 1982, but not Lowry’s specific parcel. Thus, the Court concluded, Lowry could not show continuous occupancy and therefore could not establish individual aboriginal title as a defense.