United States v. Lavon R. Kent

912 F.2d 277 UNITED STATES of America, Plaintiff-Appellee, v. Lavon R. KENT, Defendant-Appellant. No. 88-1088. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 16, 1988. Decided Aug. 1, 1990. 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. PREGERSON, Circuit Judge: 1 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…

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.

BACKGROUND

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 *278 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…

dissenting:

With all due respect, I fear that the majority has fallen into error, in part because it is deciding a different case from the one that was presented to the district court. This case was tried to the district judge on stipulated facts. The defense Kent presented to the district court was that her occupancy of National Forest lands was authorized because she had individual aboriginal title to the land. As the majority correctly decides, the district court properly rejected that contention. See United States v. Dann, 865 F.2d 1528, 1533-36 (9th Cir. 1989).

On appeal, Kent virtually abandoned her claim of individual aboriginal title. Instead, she argued that her occupancy was authorized by law because she had a certificate of eligibility for an allotment in Forest lands, and because the Forest Act of 1910, 25 U.S.C. § 337 , contemplated occupancy of Forest lands by Indians prior to the Secretary’s issuing them an allotment. This contention raises complex questions of statutory interpretation that would be difficult to decide on this undeveloped record.

The majority has chosen, therefore, to decide the ease on a third ground. It is that, in light of Kent’s certificate…