United States v. Lavon R. Kent

III. America, UNITED STATES of plain We wish to make what we are not Plaintiff-Appellee,

deciding. effect, First of all if any, Disputes Contract as we have indi- cated, may remand, be addressed on at the KENT, Lavon Defendant-Appellant. R. government’s option. Secondly, ques- No. 88-1088. tions of whether, what law and- applies, law, stated, under that claim be States Court of Appeals, must clear, addressed on remand. It is as we Ninth Circuit. said,

have that federal common law applies, Argued and Submitted Nov. 1988. it but remains be determined whether Original Opinion Aug. Filed 1990. adopt law should as a rule of decision the landlord-and-tenant law of appropri- Opinion Vacated and Withdrawn state, ate govern- here Minnesota. Sept. 1991. ment argues (anticipating before us the Opinion on Rehearing Sept. Filed issue) that state law not be should reférred to. holds that it Powers should be. See Securities,

also supra: Western de- “[I]n

termining particular what doctrine apply particular suit,

in a the court [applying

federal common will often select a law]

rule of law. But state that determination

is itself of federal com- that,

mon law: determination

particular the federal common law

rule shall be state-law rule thus-and-so.” (citations omitted, F.2d at 1280 among Powers).

them We these leave issues

argument development before and by the

District Court on remand.

To summarize: Removal was prop

er, but dismissal for of subject-matter want

jurisdiction was judgment not. The re

versed, the cause remanded to Dis

trict Court for further proceedings consist opinion.3

ent with this

It is so ordered. quirement would be met proper here. Such "law" need action is not complaint, dismissal of the not be statute. It can the federal common 1447(c) but remand state court. Section law of landlord tenant. expressly provides. Title so See Interna League tional Primate Protection Administra point, though one unlikely add it is —Fund, U.S. -, tors Tulane Educational again arise in this case. When a federal court 1700, 1709-10, to which a case has been removed from a state jurisdiction, court determines that it lacks (cid:127) Atty., Sac- Hopkins, Asst. U.S. J.

Thomas Cal., ramento, plaintiff-appellee. for Francisco, Cal., for Abinanti, Abby San defendant-appellant. PREGERSON, and CANBY

Before BEEZER, Judges. Circuit ORDER for States the United petition prior deci- Our rehearing is GRANTED. Kent, in this sion Cir.1990), and is vacated F.2d 277 matter withdrawn. opinion rehearing upon briefs submitted petition filed, and on previously record response thereto. rehearing and for rehearing, opinion, issued following decision of opinion represents now court. PREGERSON, Judge, dissents Circuit petition order; deny the he would from this rehearing. for OPINION CANBY, Judge: Circuit Indian, appeals Kent, a Karuk Lavon R. for unau- a bench trial after her conviction land in a occupancy of thorized residential contends national forest. had holding she court erred aboriginal rights individual contends, She question. also the land appeal, the first time occupy the land because entitled her issued Interior had Department of the allotment eligibility for an certificate of the rele- and because in a national forest an Indian contemplated that vant statute actually ap- occupy the land before would affirm. an allotment. plying for

BACKGROUND the district submitted This case was is a mem- facts. Kent stipulated court on Karuk Indi- federally recognized ber has been Tribe, no reservation whom aboriginal title that Any tribal aside. set possessed Karuks the area involved (E.D.Cal.1987). extinguished; here has Congress been has The district court subsequently sentenced compensation set aside for the Tribe for Kent to a thirty-day jail term and ordered taking of its lands. pay her to penalty $25 assessment. The district stayed court its sentence pending Kent a Sandy moved onto site at Bar appeal Kent’s of judgment the of convic- Creek the Klamath within National Forest August 1, 1990, tion. On we issued deci- a February in occupied and has and sion reversing the district court. United possessed that site since then. She has Kent, States v. 912 Cir.1990). F.2d 277 placed site, trailer on the a which she uses today granted We have government’s the living quarters, as her planted and has a petition for rehearing, and vacated our ear- garden, yields food for her sus- lier decision. We now affirm the district tenance. Kent excludes others from the judgment court’s of conviction. site. States Forest Service has not DISCUSSION special-use issued a authorization to Kent. I. Aboriginal Individual Title granted Nor has the Forest Service Kent or trial, At Kent anyone defended her occupancy else an allotment of of land on this parcel this Kent, however, protected of land as by site. applied and on individu- aboriginal al title. July appeal, On argues received a Kent eligi- certificate of bility Department from the district court erred of its the Interior because holding was solely based on the extinguish- which certifies that she is a California Indi- ment of aboriginal Kent’s rights, an who is tribal to obtain an allotment of failed to land on consider her claim of public domain or in a national individual aboriginal right parcel to forest. this of land. Kent relies on Supreme Court’s deci- great-grandmother Sandy at lived sion in Cramer v. United continuously Bar Creek until her death in (1923), S.Ct. L.Ed. 622 to approximately From to support her claim to aboriginal individual relative of blood Kent lived this site reject title. We her contention. Sandy on Bar Creek. Kent’s mother was clearly born one district court Sandy mile from addressed Bar Creek and ruled on lived there Kent’s claims to individual aborigi- until 1939. Relatives of Kent nal parcel title to this of just have land. allotments west of After recit- Sandy Bar ing a number of Every year extinguished Creek. actions which “since time immemori- title, Karuk tribal the district al” Karuk Indians court along have went traveled to “[ejven hold that if immediately road these adjacent to actions did not where Kent extinguish any right resides defendant Bar Creek to have participate (as opposed in as an ceremony the Karuk individual to as Pikiyowish a Ka- ruk) (World Renewal). particular parcel land, this case distinguishable is still from September 4, 1987, On the district court Kent, (em- Cramer.” at 987 guilty found Kent of unauthorized resi- phasis added).2 dential land, of national forest in (1985) violation 16 U.S.C. 551 and 36 important, More the district court 261.10(b) (1988).1 C.F.R. properly United States distinguished Kent’s individual ab- requires 1. 16 Secretary Agri- U.S.C. 551 special-use residential thorization, without a au- regulate culture to and use of or as otherwise authorized forests, provides national and further that viola- regulation. Federal law or Secretary’s regulations tion of the pun- shall ished impris- fine of not more $500 2. The court’s district final conclusion further months, onment for not more than six or both. ruling rejected confirms its claims indi- reasons, vidual title: “For following these C.F.R. states: court con- prohibited: possess cludes that defendant does not an ab- original right through heritage either her as a — (b) of, Taking possession occupying, Karuk oth- Indian or her site using System erwise question National Forest lands for use land in Klamath National For- —to attempt in all Indians who upheld such title claim from those original title their ancestral lands. return to stated, court As “[i]n Cramer. Cramer, had on the same Indians lived argues application Kent different parents their for over parcel with 175 acre because, asserts, the rule in Cramer contrast, has sixty years.” was not closed to her because of the Forest parcel since 1984. After occupied this Act and her certifi- the Forest Allotment allotment, appeal, this argued this for such an parties briefed and cate of obtained 1981.4 We of which she applied Cramer another claim court certificate, no spe- which refers to title, that her aboriginal in United States individual site, confers cific Dann, (9th Cir.), F.2d 1189 cert. entry particular parcel of land. We U.S. however, question, nor need not decide that (1989). Dann, that In we held L.Ed.2d need decide whether her certificate we established, title can be under Cram- such exception to rule could create an that or that she er, an Indian can show when occupancy begin must continuous before continuously occupied lineal ancestors her entry public closed and the Forest was to land, individuals, and parcel a of as Dann, 873 F.2d at 1197-98. settlement. occupancy com period of continuous any argument on Kent never raised based question was before the land in menced in the district court. For her certificate entry set from for of withdrawn below, explained immediately we reasons Dann, F.2d at 1198-99. tlement. argument, this raised decline to entertain re claim fails meet the to appeal. first time on in quirements Dann. She be established Right II. Kent’s to an Allotment in occupancy this of land gan parcel her of argues guilty that she cannot of Kent 1984, long title to the land after her tribe’s unlawful of forest land because extinguished, long and after had been her was authorized “otherwise as a National had been established land regulation.” Federal law Forest,3 public entry to and settle closed authorization, argues, immediately No lineal ancestors ment. in her certificate of contained acutely preceded occupancy. her in We are pursuant for an allotment Forest of, strong respect, and attach aware 1910, Allotment Act of 25 U.S.C. family, Kent has virtue of ment that permits Secretary that Act of Because parcel to of land culture and tradition this discretion,” Agriculture, “in his to make Cramer, Bar Creek. eligi- to allotments of national forest land in permits protect to such ties the form us land, “occupying” the ar- ble Indians Kent only legal for those Indians who title entitled to a gues that she is establish choice, presence on that land. have maintained a her residence a location of cannot, Dann, apply find an under then to allotment. Cramer 1962, entry purposes." repealed in for settlement est for residential new Fed.Reg. (emphasis permitted. has See 52 23473-75 at 987 been (June 22, 1987). 3. President Theodore Roosevelt created the Kla- portion when We need not determine this proclamation by a issued math National Forest entry public land closed to and settlement was 6, 1905, (1905). May In 34 Stat. 3001 satisfy to that Kent’s did ourselves congress passed the Forest Allotment which By predate for settlement. whatev- closure eligible procedure Indi- established calculation, Forest was er Klamath National apply land could to receive an allotment of ans long when first occu- before 1984 closed pied the National Forests. 25 U.S.C. 337. within parcel of land. generally open were to settlement from Forests to under the Forest Homestead Act Kent’s certificate eligibility, dated June (34 233), Secretary Agriculture the designate Stat. part: provides pertinent "This is to being appropriate to lands instructed certify R. Kent ... California Indi- Lavon they were deemed better for settlement when an, May to as an Indian agriculture forestry. born Indians who suited public or in a seeking receive land on the domain ... were entered the Forests allotments seeking 31 of the persons [Forest under national forest under Section homesteads treated Homestead Act. Since that Act Allotment Act].” the Forest argument Kent did not raise this the district court. That is the court, ques and decision of this any in district whether there is “mens rea” statutory interpreta tion involves issues of establish violation of 36 C.F.R. 261.- regulatory authority difficult 10(b). tion and We address that issue now because undeveloped decide on this record.5 We we prior opinion, addressed it in our after normally appeal will not consider on ordering additional briefing ques- on the court; argument not raised one tion. Concern over our treatment exception newly occurs review of when issue government’s led to the petition for presented prevent issue is essential “to rehearing, granting and to our peti- of that United States v. miscarriage justice.” tion. We now hold that section Greger, (9th Cir.1983), does not contain a mens rea element.7 cert. states; Section We find no such The following prohibited: miscarriage justice here. At least to the argument, time of Kent had made no at tempt apply for an allotment. Nor had (b) of, Taking possession occupying, or made, Secretary called been using System otherwise National Forest make, the determination the land in lands for residential purposes without a agricultural issue was more valuable for or special-use authorization, or as otherwise timber, grazing purposes prereq than for by authorized Federal regulation. law or parcel

uisite to allotment of the under sec 261.10(b) (1990). 36 C.F.R. § tion 337. seeWe no reason to deviate from precluding our normal rule review of issues Our determination that there is no mens not raised the district court.6 rea element contained in regulation is compelled by our decision in United States 261.10(b) III. Whether 36 C.F.R. In- Wilson, (9th Cir.1971), 438 F.2d 525 cludes a Mens Rea Element interpreted a similar Forest Service issue, however, There is one regulation, 261.6(a). that we 26 C.F.R. reg- That states; though address even Kent did not raise it ulation 5. The dissent contends that Kent’s certificate of was not "otherwise authorized eligibility, by when viewed in connection with the regulation." Federal law or 36 C.F.R. 261.- Forest Allotment makes 10(b). it reasonable for Kent never contended in district court her to have believed that it was lawful for her to by any that her was authorized fed- settle on the tract that she selected. While we regulation, eral law or nor did she contend that issue, question do not rule the we the petition she believed it was so authorized. In its soundness of that view. Kent’s certificate of that, rehearing, the asserts if by Superintendent was issued the issue, notice had been an it would have intro- Reservation; Hoopa pur the Indian it does not duced evidence that Kent had been warned port any particular to award tract in the nation by more than once the Forest Service that her al forest. National forests are administered illegal. Secretary Agriculture, grant the who not argu- We also decline to address one other determining an allotment without first that the ment that Kent raises for the first time on question agricul tract in is more valuable for appeal: her contention that grazing ture or for timber. responsibility breached its trust to her as an Hopkins § 2533.1. v. United Cf. by prosecuting assisting Indian her instead of (9th 1969) (General 467-68 Cir. Allotment securing argu- her in an allotment. No such give Act did not Indian vested to allotment presented ment was district court. Re- it; simply by selecting settling of land his prevent miscarriage view is not essential to Secretary sup must determine that lands can justice. Greger, 716 F.2d at port grazing agriculture settler or before allotment). approving prior opin- 7.We address the because issue our ion, though today, might reasons, we withdraw it cause 6. For the same we decline to address misimpressions about the question regulation status of our earlier gave whether the fair dealing regula- with prohibited. notice to Kent decisions various forest that her conduct was process necessary This due tions. Our review of the issue is issue raises somewhat “preserve integrity judicial pro- same as the allotment issue discussed ... of sufficiently Greger, above: whether it is clear that cess.” 716 F.2d at 1277.

144 willfully or allowed prove that the violator prohibited: following are

The prevent the cattle from willfully failed to damaging any (a) Cutting or otherwise Also, Id. at 225-25. entering the forest. tree, product, ex- timber, other forest Launder, 743 F.2d autho- by special-use cept as authorized Cir.1984), statute contract, interpreted a we rization, or Federal timber sale or “suffer” a “permit” crime to making it a regulation. law control in a national spread out of fire is not Wilson, we held that willfulness In act or require proof of a willful forest violating sec- the offense of element pointed out that to act. We willful failure 261.6(a), noting that tion “not “suffer” were “permit” or the words the omis- reason to believe that [t]here liability.” Id. of strict language intentional. of mens rea was sion in each instance necessity proving cannot be present had crossed knew that he trespasser be- or Launder controlled Semenza of a marked boundaries poorly the often 261.10(b)contains no similar cause section regula- might make forest national requisite state of implying a to en- excessively difficult tory scheme language construed Wil- mind. Like the force. son, language of section Wilson, F.2d at 625. action, speaks solely of with reference who can not see how one section to volition. We do do not see how We 261.6(a) in from section forest and cuts distinguished a national wanders onto regard to this issue. one strictly held liable when trees can be only apply to situa- urges would on and establishes resi- who wanders hers,8 as but sympathetic therefore, conclude, tions dence not. against any of this enforcement require does not violations section 261.10 for- any land in federal person occupying “willful”; there is no “knowing” or would, indeed, est. Such in the crime defined element criminal intent excessively regulatory scheme “make by regulation. that difficult to enforce.” strong medi- liability is criminal Strict CONCLUSION cine,9and, read crimi- accordingly, we have court con- judgment of the district Forest requirements into some intent nal violation of 36 C.F.R. victing Kent regulations, where their Service 261.10(b) is § suggested it. In remotely (9th Cir.1987), Semenza, we 835 F.2d 223 AFFIRMED. regula- interpreted another Forest Service containing requisite element of as a tion PREGERSON, Judge, dissenting: Circuit regulation, That C.F.R. willfulness. majority that the agree I with the 261.7(a), “allowing unautho- prohibits § R. properly ruled that Lavon Kent court or be in the Nation- livestock to enter rized aboriginal had no individual “allow- System.” We construed al Forest Sandy on Bar element, disputed parcel of land per- a mental ing” implying as I reverse Kent’s convic- mission, to Creek. would government But 252-53, sympa- Id. at den acts or omissions." S.Ct. to the The district court was not blind 8. explained: aspects Kent’s case. He offered at 244. Court thetic probation if moved off the her to she sentence violation, accused, if he does not will a The offer was refused. land. usually position prevent it with inis reasonably society might ex- more care than liability imposing here The harshness strict might rea- pect more exertion than it and no mitigated by con- fact that this sonably assumed his re- "public from one who description welfare exact to the forms Also, commonly penalties sponsibilities. v. United in Morissette described offense" 253-257, small, grave S.Ct. relatively 342 U.S. does no and conviction (1951), the Court for which reputation. L.Ed. 288 damage an offender's "depend appropriate the crime it Morissette, deemed S.Ct. at 342 U.S. at only of forbid- no mental element but consist occupancy preclude finding residential that Kent tion for unauthorized knew her oc- land reasons. cupancy of national forest for two of the site at Bar Creek First, government prove failed to by was not “authorized Federal law or necessary mens rea to violate Kent had the regulation.” 261.10(b). 36 C.F.R. § Second, because the 36 C.F.R. § eligibility, Kent’s certificate of issued regulations statutes and did not relevant Department Interior, states that give Kent sufficient notice that her conduct Kent is “to receive land ... unlawful, might process have been due will national forest under Section 31 of the permit her conviction to stand.1 I not Allotment Section 31 of the [Forest Act].” respectfully dissent. therefore 337,3 Forest Allotment 25 U.S.C. § states that the is authorized to I any make occupying, allotments “to Indian charging Kent vio The information with on, living having improvements lating 551 and 36 C.F.R. 261.- U.S.C. § any land included within such national 10(b) alleged Kent knowingly “did forest_” (Emphasis This lan- of, possession occupy take and otherwise guage contemplates that an Indian will oc- System lands for resi use National Forest cupy land within a national forest before special-use dential without a au applying for an allotment. thorization, or as otherwise authorized Despite plain language of the stat- regulation....” (Emphasis Federal law or ute, government interprets the Forest added).2 “Knowingly” requires Allotment Act to mean that prove as an element of the national forest land applying before for an “voluntarily and inten offense that prohibited by allotment is 16 U.S.C. 551 tionally and not accident or mistake” and 36 C.F.R. unless Indian engaged prohibited in the conduct. United can trace continuous ancestral Jewell, (9th Cir.) States v. banc), According of the site back to 1910.

(en cert. government’s interpretation, (1976); because Kent 1 Devitt S.Ct. Blackmar, trace cannot continuous familial Jury Federal Practice and (3d Instructions, 1977). of the site in 14.04 ed. In the back to ambiguities present receiving unresolved in the the land before (discussed below) allotment, relating ultimately law to allotments an even if she is enti- system of national forest land to Indians tled to one. The makes these questions may 1. "The of what § matter be taken 3.25 U.S.C. 337 states in full: up appeal and resolved for the first time on is authorized, Secretary The of the Interior is primarily one left the discretion of the courts discretion, in his to make within allotments appeals, to be exercised on the facts of indi conformity the national with the forests 106, Singleton Wulff, vidual cases.” v. 428 U.S. laws, general any occupy- allotment Indian 121, 2868, 2877, 96 S.Ct. on, ing, living having improvements or on land Although she did not raise these issues before any included within such national who forest court, “prevent miscarriage the trial any existing is not entitled to an allotment on 1275, justice,” Greger, v. F.2d United States 716 reservation, Indian or for whose tribe no res- Cir.1983), 1007, (9th denied, 1277 rt. 465 U.S. ce provided, ervation has been or whose reserva- 1002, (1984), L.Ed.2d 104 S.Ct. 79 234 I would tion was not sufficient to afford an allotment fully- exercise our discretion to address Kent’s briefed, applications to each member thereof. All (1) legal arguments that provisions under the of this section allotments (2) includes a mens rea element and Secretary Agricul- shall be submitted to the regulations applicable provided the statutes and ture who shall determine whether the lands prohib insufficient notice that her conduct was agricultural applied for are more valuable for ited. grazing purposes for the found or timber be found that the lands and if it specified The information thus the thereon: applied element of agricultural are valuable for more supplied by criminal intent that 36 grazing purposes, Secretary 261.10(b). the of the or then C.F.R. See United States v. Morri- son, (9th Cir.1976) (indict- to be made as Interior shall cause allotment 536 F.2d 288 provided. specify ment must so). intent if statute fails to do herein (Emphasis at imposed. is punishment Allot- criminal though the Forest arguments even 2088; also United at see do not S.Ct. regulations and related ment Act F.2d Nofziger, 878 is continuous state that ambiguous sub (D.C.Cir.) (interpreting an been certified though Kent has and even Act as in a Ethics Government of land of the an allotment section eligible to receive government to demonstrate requiring the forest. national knowledge had that defendant interpreted 25 reported cases have No criminal), cert. made his conduct facts that Indians which 337 to determine U.S.C. § an entitled to allotment fact are in (1989); v. Sher L.Ed.2d 559 United States applying for an occupancy before whether Cir.1988) (9th 996, 1009 bondy, 865 F.2d required by the allowed allotment (rule lenity requires that “[w]here necessary to decide these is not It statute. more statute admits of penal aof note sufficient to here; it is rather issues courts should interpretation, than one questions. Given they open are that construction”). least harsh choose the law and state of unsettled current could majority’s contention disagree available with the information I permitted application she was reasonably requires believe that that section the land at settle on it is a liability law to standard because a strict federal stipulated offense,” i.e., facts one which Sandy Bar Creek. “public welfare unsup- government’s type and the this case criminal a conduct “render[s] laws applicable subject ported person should know reasonable reason- finding beyond regulation seri- stringent public sustain cannot requisite had community’s that Kent health or doubt ously able threaten convicted of unauthorized rea to be 471 U.S. at safety.” Liparota, mens forest occupancy of national Occupation of Forest Ser- residential S.Ct. inherently dangerous system land. lands is not vice government has not sub- activity, govern- briefing, supplemental In that Kent’s any evidence mitted 261.10(b)sets argues that C.F.R. ment public. endangered the offense, despite the liability forth a strict alleged that the the information Cir- majority fact concludes that a Ninth “knowingly” committed. For- offense was a different construed cuit argument (26 on the lack its 261.- bases C.F.R. est Service in sec- requirement rea explicit 6(a)), mens of an this case. See United States controls requiring Cir.1971). offenses I Wilson, tion Criminal rea, generally disfa- Wilson, For- In we held disagree. mens States, 471 Liparota v. United cut- regulation prohibiting the vored. est Service’s 2084, 2088, S.Ct. forests is ting U.S. in the national of timber more (1985). “[C]ertainly far cutting of tim- liability L.Ed.2d offense. The strict appropriate of the simple omission ber, “public welfare offense” is statutory definition is irreparable from harm to our nation- that causes rea] [mens in- dispensing hand, with an necessary justify to mere the other al forests. On (quoting Unit- requirement_” tent does “seri- occupier land like Kent not Co., Gypsum community’s ously ed States United health threaten 2864, 2874, 422, 438, 98 S.Ct. action. ejected a civil safety” U.S. and can be (1978)). L.Ed.2d 854 II construction of the To avoid a interpreted if is range Even section “criminalize broad

that would offense, I believe conduct,” liability Liparota, a strict apparently innocent applied As to 2088, cannot stand. 426, I conviction read at 105 S.Ct. at 471 U.S. regulations statutes and showing the relevant “require[] a to section notice that her provide sufficient did knew conduct defendant that the [her] question may the site occupancy of regulation before by the be unauthorized” illegal. process requires penal Due that a Ill warning give statute fair of what the law underlying questions regarding the “commands or forbids.” Lanzetta v. New rights conferred Kent’s certificate of 451, 453, 618, 619, Jersey, 306 U.S. 59 S.Ct. eligibility meaning and the of the Forest 83 L.Ed. 888 “A defendant is Allotment Act should be resolved before deemed to have fair notice of an offense if criminally responsible Kent is held for un person ordinary a reasonable intelli- authorized occupancy. residential gence would understand his or her present prosecution essentially criminal is prohibited by ques- conduct is the rule in dispute land between Kent and the Forest Hogue, tion.” United States v. 752 F.2d dispute Service. Such a adjudi should be (9th Cir.1985). Dunn v. Cf. matter, cated as a civil meaning where the of the relevant regulations statutes and (1979) (Supreme fully can be examined and where Kent’s “long-established practice Court’s of resolv- occupy ultimate the land can be ing questions concerning the of a ambit Miller, determined. See United States v. lenity criminal statute in favor of ... Cir.1981) (“c 659 F.2d rimin principles due rooted in fundamental process al should not be used for the process which mandate that no individu- settling dispute, a land speculate, peril al be in- forced conviction”); that basis we reverse the dictment, prohibit- whether his conduct is Esposito, United States v. ed”) (citations omitted) (emphasis (4th Cir.1985) (“civil rather than crimi proceedings appropriate nal adjudi 261.10(b) in Section clear ex- disputes cate between holdover tenants and empts anyone “otherwise authorized under government”). prohibition against Federal law” from the occupying national forest land for resi- government argu- indicated at oral above, purposes. dential As discussed this ment that it reported knew no other case exception may reasonably be understood to in which an Indian has criminally been apply Kent. She has a certificate of prosecuted violating 261.- eligible which states that she is 10(b). history, this why Given one wonders for an allotment of land in a national for- proceed- instituted criminal Moreover, plain language est. of the ings in especially since less dras- encourages Forest Allotment Act Kent to See, e.g., tic civil measures were available. obtaining the site as a condition to Langley, United States v. an allotment of national forest land. (E.D.Cal.1984) (Forest Service regulations may by injunction, be enforced Neither the allotment statute nor the cor- action). as well as criminal If Kent now responding regulations state that there is a allotment, applies for an the issue can be time limit within which an Indian must proceedings. resolved those Alternative- apply receiving for an allotment after ly, apply allotment, if she fails to for an eligibility. they certificate of Nor do state bring can a civil action that that continuous ancestral proper will lead ato resolution of the un- site since 1910 is before an Indian derlying dispute. land to receive an allotment of land in a national forest. I find that the confused contradictory information available to otherwise, statutory and failed to

provide her with sufficient notice that her might criminally

conduct unlawful.

Thus, her Bar Creek

cannot be used as the basis for a criminal

prosecution under 16 551 and 36 U.S.C. §

C.F.R. §

Case Details

Case Name: United States v. Lavon R. Kent

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 27, 1991

Citation: 945 F.2d 1441

Docket Number: 88-1088

Court Abbreviation: 9th Cir.