9th Circuit issues decision in aboriginal title case

The 9th Circuit Court of Appeals on Wednesday ruled against a member of the Karuk Tribe of California who claimed aboriginal title n a national forest.

Karen Lowry was charged with trespassing in the Klamath National Forest. The U.S. Forest Service said she didn't have a special-use authorization and hadn't received an Indian allotment for the property she was occupying.

As part of her case, Lowry raised an aboriginal title defense. Her parents and grandparents have lived in the Oak Bottom area of the forest since the late 1800s and the Karuk people have occupied the same area for thousands of years.

Lowry argued that it was up to the government to prove she didn't have aboriginal title. But the 9th Circuit, in what it called a "question of first impression," said the burden was on the defendant.

In the unanimous decision, the court said "if we were to place the burden on the government, we would create a presumption that Indians have an individual aboriginal claim until the United States proves otherwise. Such a presumption might prove unworkable in a number of ways—not the least being that it might subject some national forest system lands to multiple claims of ownership and leave the United States unable to manage its lands effectively."

The court also ruled on the merits of Lowry's claim and said she didn't prove aboriginal title to the parcel she occupied. Her ancestors lived on nearby parcels but not on the same plot of land, the court said.

"There is no basis in the case law to expand a claim of individual aboriginal title based on occupancy of one parcel of land to include another parcel that was never so occupied," the 9th Circuit stated.