United States v. Lowry ( 2008 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                  No. 06-10469
    Plaintiff-Appellee,
    v.                            D.C. No.
    CR-05-00399-LKK
    KAREN LOWRY,
    OPINION
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Eastern District of California
    Lawrence K. Karlton, Senior Judge, Presiding
    Argued and Submitted
    June 15, 2007—San Francisco, California
    Filed January 16, 2008
    Before: Alfred T. Goodwin, Jay S. Bybee, and
    Milan D. Smith, Jr., Circuit Judges.
    Opinion by Judge Bybee
    551
    554                 UNITED STATES v. LOWRY
    COUNSEL
    Monica Knox, Assistant Federal Public Defender, Sacra-
    mento, California, for the appellant.
    Samantha Spangler, Assistant United States Attorney, Sacra-
    mento, California, for the appellee.
    OPINION
    BYBEE, Circuit Judge:
    In this case we are presented with a question of first
    impression: Who bears the burden of proof when a defendant
    is charged with occupation of Forest Service land in violation
    of 36 C.F.R. §§ 261.10(b) and (k)? Must the prosecution
    prove that the defendant does not have individual aboriginal
    title, or is the claim an affirmative defense? We hold that the
    occupant claiming individual aboriginal title bears the burden
    of demonstrating such title as an affirmative defense. Apply-
    ing that standard, we conclude that the defendant in this case
    failed to meet this burden, and we affirm the judgment of the
    district court upholding the defendant’s convictions.
    I
    Congress has charged the Secretary of Agriculture with “re-
    gulat[ing] the[ ] occupancy and use” of the national forests by
    “rules and regulations.” 16 U.S.C. § 551. Any person violat-
    ing such regulations may be tried before a magistrate judge
    and, if convicted, punished. 
    Id. Under the
    Secretary’s regula-
    tions, no one may “possess[ ] . . . occupy[ ], or otherwise us[e]
    National Forest System lands for residential purposes without
    a special-use authorization, or as otherwise authorized by
    Federal law or regulation.” 36 C.F.R. § 261.10(b). Section
    261.10(k) similarly prohibits the “[u]se or occupancy of
    UNITED STATES v. LOWRY                  555
    National Forest System land or facilities without special-use
    authorization when such authorization is required.”
    There are effectively three ways that a claimant may be
    authorized to occupy national forest lands. First, a claimant
    may receive special-use authorization. See 36 C.F.R.
    §§ 251.50, 251.52, 251.55. Second, she may claim authoriza-
    tion under the Forest Allotment Act, which permits Indians
    who are “not entitled to an allotment on any existing Indian
    reservation, or for whose tribe no reservation has been provid-
    ed” to apply for an allotment. 25 U.S.C. § 337. The Secretary
    of the Interior may grant such allotment if the Secretary of
    Agriculture finds that the land is more valuable for agricul-
    tural or grazing purposes than for the timber. Id.; see 43
    C.F.R. §§ 2533.1, 2533.2. Third, she may claim individual
    aboriginal title to the land under the authority of the Supreme
    Court’s decision in Cramer v. United States, 
    261 U.S. 219
    (1923). See United States v. Dann, 
    873 F.2d 1189
    (9th Cir.
    1989).
    The Karuk people have occupied the Oak Bottom area of
    the Klamath National Forest in northern California from time
    immemorial. Karen Lowry, a Karuk Indian, has resided on
    property located in the Oak Bottom area since approximately
    1983. Lowry has not received a special-use authorization, nor
    has the Secretary of Interior granted Lowry an Indian allot-
    ment of land on this site. Oak Bottom encompasses a large
    area, including a Forest Service campground and work center,
    a 6.5 acre parcel known as Indian Allotment 280, and
    Lowry’s current residence, comprising about five acres.
    Indian Allotment 280, which is approximately fifty yards
    from Lowry’s residence, was granted to Oak Bottom Jack,
    one of Lowry’s relatives, and has passed to relatives other
    than Lowry. Lowry’s great-great-grandfather, Nupas, resided
    in the Oak Bottom area at least until 1900. Her great-great-
    grandmother, Mahkhawa’da, resided in a two-story log cabin
    located on the property now occupied by Lowry. The dates of
    Mahkhawa’da’s residence are unclear, but it appears that she
    556                     UNITED STATES v. LOWRY
    was forced off the property by white miners at some point in
    the early 1900s. Mahkhawa’da later returned to the property
    after the miners left.
    Lowry’s paternal grandmother, Bessie Tripp, was born in
    the area in the 1870s. Bessie was not raised on the land cur-
    rently occupied by Lowry, but in a “house up at the upper
    end.” Bessie left the area to attend school and subsequently
    got married, though she returned on the weekends and during
    some summers. In 1926, Bessie took up permanent residence
    on Indian Allotment 280. Lowry resided with Bessie on
    Indian Allotment 280 until Lowry was eleven years old, when
    she was placed in foster care. Lowry occasionally returned to
    Oak Bottom to visit Bessie, although Lowry did not take up
    residence on the property she currently occupies until about
    April 1983, after Bessie’s death on December 6, 1982.
    In the late 1980s, the Forest Service accused Lowry of tres-
    passing on Forest Service lands and encouraged her to obtain
    an Indian allotment for the land she occupied. She applied for
    an allotment in 1987.1 On July 13, 1990, a Forest Service
    Supervisor determined that the land was not available for
    allotment because of its location within the Wild and Scenic
    River corridor of the Salmon River. The Supervisor also noted
    several other reasons that an allotment could not be granted,
    including Lowry’s statutory ineligibility and her failure to
    substantiate the agricultural uses of the land. When Lowry
    requested that the Supervisor permit her to reopen the pro-
    ceedings, the Supervisor refused, citing the lack of any new
    information that would result in issuance of the allotment.
    California Indian Legal Services sent the Supervisor a “Notice
    of Appeal” on Lowry’s behalf, which the Supervisor denied
    1
    In 1988, Lowry received a certificate of eligibility from the Depart-
    ment of the Interior which certifies that she is eligible to obtain an allot-
    ment of land in the public domain or in a national forest. However, the
    letter noted that her “chances of obtaining a Public Domain allotment are
    severely limited.”
    UNITED STATES v. LOWRY                         557
    because the governing regulations did not permit an adminis-
    trative appeal in Lowry’s case. Lowry sought no further relief.
    On August 8, 2003, the government charged Lowry with
    occupancy of Forest Service land in violation of 36 C.F.R.
    §§ 261.10(b) and (k).2 Prior to trial, the government filed a
    motion in limine to exclude evidence that the government’s
    denial of Lowry’s application for an Indian allotment was
    arbitrary and capricious. The magistrate judge granted this
    motion and precluded evidence related to Lowry’s applica-
    tion. Before the magistrate judge, Lowry claimed a right to
    aboriginal title under Cramer, 
    261 U.S. 219
    , because her fam-
    ily had resided in the area since at least the late 1800s.
    On August 30, 2005, after a two-day trial, the magistrate
    judge found Lowry guilty of unlawful occupancy. He rejected
    Lowry’s argument that she was authorized to occupy the land,
    holding that authorization is an affirmative defense as to
    which Lowry had not met her burden of proof. The magistrate
    judge also considered Lowry’s challenges to the denial of her
    allotment application. Ultimately, he determined that the court
    lacked jurisdiction pursuant to 25 U.S.C. § 345 to consider the
    denial of the allotment application and further found that
    Lowry was not deprived of due process because she had vol-
    untarily opted not to pursue an action in the district court fol-
    lowing the denial. He then issued a sentence that required
    Lowry to leave the disputed land by April 30, 2006.
    On July 25, 2006, the district court issued a detailed opin-
    ion affirming Lowry’s conviction, but on different grounds.
    The district court held that authorization was an element of
    the offense for which the government bore the burden of
    2
    Although the government initially filed a 23-count information, it
    eventually brought only the first two charges, both concerning Lowry’s
    unlawful occupancy. The government also agreed to seek only Lowry’s
    removal from the land and restitution for clean-up costs rather than a fine
    or a prison sentence.
    558                UNITED STATES v. LOWRY
    proof. However, the court then held that any error caused by
    the magistrate judge’s incorrect rule was harmless because the
    government had met its burden of proof. The district court
    also affirmed the magistrate judge’s exclusion of the evidence
    of Lowry’s Indian allotment application and the determination
    that the magistrate judge lacked jurisdiction to consider
    Lowry’s challenge to the Forest Service’s denial of that appli-
    cation.
    II
    Lowry appeals her convictions for unauthorized residential
    occupancy of land in a national forest, see 36 C.F.R.
    § 261.10(b), and for unauthorized use or occupancy of land or
    facilities in a national forest, see 36 C.F.R. § 261.10(k). She
    raises two issues. First, Lowry contends that the magistrate
    judge erroneously shifted the burden of proof and that the
    government failed to prove each element of the crime. Specif-
    ically, she alleges that the government has the burden of prov-
    ing that she did not have authorization based on a claim of
    individual aboriginal title to occupy the Oak Bottom area.
    Second, Lowry asserts that the magistrate judge precluded her
    from presenting a defense by excluding evidence that the
    denial of her Indian allotment application was arbitrary and
    capricious, because, had the application been granted, would
    have provided an alternate means of authorization to occupy
    the land. We address each of Lowry’s arguments in turn.
    III
    Lowry claims that she has individual aboriginal title to the
    National Forest Service lands she now occupies. Preliminar-
    ily, she disputes the burden of proof applied by the magistrate
    judge as to the authorization requirements in 36 C.F.R.
    §§ 261.10(b) and (k). Lowry contends that the government
    has the burden to prove all elements of the crime as defined
    in the regulations, and to do so, it must establish a negative—
    that she lacked authorization to occupy the land in question.
    UNITED STATES v. LOWRY                          559
    Consequently, she asserts that the magistrate judge erred by
    requiring her to establish that she held individual aboriginal
    title to occupy the land. With respect to the district court’s rul-
    ing, Lowry does not challenge the burden of proof applied,
    but disputes that the government provided sufficient evidence
    to negate her authorization to occupy the land. The govern-
    ment contends that authorization operates as an affirmative
    defense, such that an occupant must raise and prove some
    right to possession.3
    Our analysis is complicated by the fact that although Lowry
    challenges the magistrate judge’s rule, she agrees with the one
    subsequently applied by the district court. The magistrate
    judge—acting as the trial court—applied the allegedly errone-
    ous burden of proof and convicted Lowry. The district court
    then rejected the magistrate judge’s allocation of the burden
    of proof and adopted the rule endorsed by Lowry, but none-
    theless upheld the conviction. Consequently, although Lowry
    disagrees with the magistrate judge in full, she only disagrees
    with the district court in part: Lowry does not assert that the
    district court’s rule was plainly erroneous, but that the district
    court’s application of that rule was plainly erroneous. To
    assess Lowry’s claim, however, we must first consider the
    allocation of the burden of proof as to the authorization
    requirement in 36 C.F.R. §§ 261.10(b) and (k). Only then can
    we turn to whether that burden was met. Because we reject
    the rule applied by the district court, we do not ultimately
    reach the merits of Lowry’s challenge to the district court rul-
    ing.
    3
    Lowry’s challenge to the magistrate judge’s interpretation of a statute
    is a question of law that we typically review de novo. See United States
    v. Carranza, 
    289 F.3d 634
    , 642 (9th Cir. 2002). Lowry’s appeal from the
    district court amounts to a claim of insufficient evidence, a ground she did
    not raise before the district court. Our review “when a defendant does not
    preserve a claim of sufficiency of the evidence by failing to make a
    motion for acquittal at the close of the evidence,” requires reversal “only
    upon plain error or to prevent a manifest injustice.” United States v. Del-
    gado, 
    357 F.3d 1061
    , 1068 (9th Cir. 2004).
    560                    UNITED STATES v. LOWRY
    A
    [1] Sections 261.10(b) and (k) do not explicitly allocate the
    burden of proof. The regulations make it a misdemeanor to
    occupy Forest Service land for residential purposes “without
    a special-use authorization, or as otherwise authorized by
    Federal law or regulation.” 36 C.F.R. § 261.10(b). The magis-
    trate judge held that Lowry’s claim to individual aboriginal
    title was an affirmative defense and that she “had the burden
    of going forward with these affirmative defenses, since they
    were not elements of the case in chief.” The district court dis-
    agreed, citing its prior decision in United States v. Lex, 
    300 F. Supp. 2d 951
    , 956 (E.D. Cal. 2003), and held that the
    phrase “without a special-use authorization or as otherwise
    authorized by federal law” was an element of the crime
    charged.
    [2] We have not explicitly addressed the allocation of the
    burden of proof of the authorization requirement in 36 C.F.R.
    §§ 261.10(b) and (k). In fact, it appears that the burden of
    proof question is one of first impression in the circuit courts.
    Because the absence of a special-use authorization or Indian
    allotment is not disputed here,4 we do not address the burden
    of proof as to these potential grounds for authorization.5
    Instead, we consider the burden of proof as to the specific
    basis raised here—that is, Lowry’s claim of individual aborig-
    inal title.
    4
    Although Lowry challenges the government’s denial of her Indian
    allotment application as arbitrary and capricious, an issue we address in
    section IV, she does not dispute the denial itself.
    5
    There is language in our precedent suggesting that the government
    must prove the absence of a special-use authorization or an Indian Allot-
    ment. See United States v. Adams, 
    388 F.3d 708
    , 712 (9th Cir. 2004)
    (reciting the lack of special-use authorization as a statutory element to be
    proven by the government); United States v. Caudle, 
    48 F.3d 433
    , 434 (9th
    Cir. 1995) (same). However, neither Adams nor Caudle specifically con-
    sidered the allocation of the burden of proof. We need not address this
    issue here.
    UNITED STATES v. LOWRY                   561
    We have previously considered whether a claim of individ-
    ual aboriginal title satisfied the requisite authorization in 36
    C.F.R. § 261.10(b) in a case very similar to Lowry’s. In
    United States v. Kent, 
    945 F.2d 1441
    (9th Cir. 1991), we
    addressed whether Kent, a Karuk Indian, had an individual
    aboriginal right to occupy land within the Klamath National
    Forest. We did not explicitly address the burden of proof as
    to authorization, but we did speak in terms that appeared to
    put the burden on the defendant to establish individual aborig-
    inal title. We phrased the defendant’s position as a defense,
    stating that “[a]t trial, [the defendant] defended her occupancy
    of this parcel of land as protected by individual aboriginal
    title,” 
    id. at 1443,
    and we required the defendant to demon-
    strate such title, observing that individual aboriginal title may
    be established “when an Indian can show that she or her lineal
    ancestors continuously occupied a parcel of land, as individu-
    als, and that the period of continuous occupancy commenced
    before the land in question was withdrawn from entry for pur-
    poses of settlement.” 
    Id. at 1444
    (emphasis omitted) (citing
    United States v. Dann, 
    873 F.2d 1189
    , 1198-99 (9th Cir.
    1989)). We held that “[the defendant]’s claim fails to meet
    th[ose] requirements.” 
    Id. Although we
    did not expressly so
    hold, Kent strongly implied that the defendant has the burden
    of proving a claim of individual aboriginal title.
    [3] Lowry argues that Kent does not govern her case and
    that the phrase in 36 C.F.R. § 261.10(b), “without a special-
    use authorization, or as otherwise authorized by Federal law
    or regulation,” merely “negates an element of the crime” and
    may not be shifted to the defendant. See Walker v. Endell, 
    850 F.2d 470
    , 472 (9th Cir. 1987). We disagree. It is a “settled
    rule” that “an indictment or other pleading founded on a gen-
    eral provision defining the elements of an offense, or of a
    right conferred, need not negative the matter of an exception
    made by a proviso or other distinct clause, whether in the
    same section or elsewhere, and that it is incumbent on one
    who relies on such an exception to set it up and establish it.”
    McKelvey v. United States, 
    260 U.S. 353
    , 357 (1922). We do
    562                 UNITED STATES v. LOWRY
    not think that the “without” clause in 36 C.F.R. § 261.10(b)
    negates an element of the crime. The charge from Congress
    to the Secretary of Agriculture is “to regulate the[ ] occupancy
    and use [of the national forests] and to preserve the forests
    thereon from destruction.” 16 U.S.C. § 551. This the Secre-
    tary has done by prohibiting the “[t]aking possession of, occu-
    pying, or otherwise using National Forest System lands for
    residential purposes,” 36 C.F.R. § 261.10(b), and the “[u]se or
    occupancy of National Forest System land or facilities.” 36
    C.F.R. § 261.10(k). The government bears the burden of prov-
    ing possession, use or occupancy of the land. The statute pro-
    hibits possession or occupation generally, subject to specific
    exceptions authorized by law. The “without” clause simply
    recognizes the existence of such exceptions to the general
    prohibition against residing in the nation’s forests. We hold
    that the defendant bears the burden of proving these excep-
    tions.
    This approach is consistent with our approach in Kent, in
    which we stated that the person claiming individual aboriginal
    title must demonstrate continuous individual occupation that
    commenced before the land in question was withdrawn from
    entry for purposes of settlement. See 
    Kent, 945 F.2d at 1444
    .
    Placing the burden on the claimant to prove authorization is
    also consistent with other cases in a variety of areas in which
    we have addressed statutory exceptions. In United States v.
    Freter, the statute at issue provided for the punishment of
    “ ‘[a]ny person . . . in charge of a facility from which a haz-
    ardous substance is released, other than a federally permitted
    release, . . . who fails to notify immediately the appropriate
    agency.’ ” 
    31 F.3d 783
    , 787 (9th Cir. 1994) (quoting 42
    U.S.C. § 9603(b)(3)) (emphasis and alterations in original).
    The defendant argued that the government was required to
    prove, as an element of the offense, that its release was not
    federally permitted. He argued that the “other than” clause
    was an element of the offense because it was “not set forth in
    a distinct statutory section, but is stated in a sentence describ-
    ing the elements of the offense, and is set off only by com-
    UNITED STATES v. LOWRY                   563
    mas.” 
    Id. at 788.
    We rejected this argument, stating that “[t]he
    doctrine we apply . . . is not limited to statutes in which the
    relevant language is in a separate section, or in which the rele-
    vant language is in a separate sentence from that describing
    the elements of the crime,” and derives from the “well-
    established rule . . . that a defendant who relies upon an
    exception to a statute made by a proviso or distinct clause,
    whether in the same section of the statute or elsewhere, has
    the burden of establishing and showing that he comes within
    the exception.” 
    Id. (citations and
    internal quotation marks
    omitted). See also Moore v. United Kingdom, 
    384 F.3d 1079
    ,
    1085-86 (9th Cir. 2004) (“As [the appellant] is relying on an
    exception within the text of the treaty, the burden is on him
    to show that the exception applies.”); United States v. Gra-
    venmeir, 
    121 F.3d 526
    , 528 (9th Cir. 1997) (construing 18
    U.S.C. § 922(o)(2)(B) as an affirmative defense). Once the
    claimant proves that she comes within the exception, then the
    government must prove the inapplicability of the defense
    beyond a reasonable doubt. See United States v. Bruce, 
    394 F.3d 1215
    , 1222-23 (9th Cir. 2005) (holding that Indian status
    is an affirmative defense to a charge under 18 U.S.C. § 1152,
    and that once the burden of production is satisfied, the gov-
    ernment retains the ultimate burden of persuasion).
    Aside from its theoretical support, our approach makes
    practical sense in this case: given the nature of Lowry’s claim
    to individual aboriginal title, it would be “far easier for the
    defendant to present evidence” of her Indian ancestors and
    their history of land occupancy to establish that the exception
    applies than for the government to do so. 
    Freter, 31 F.3d at 788-89
    ; see also 
    Gravenmeir, 121 F.3d at 528
    (“That the gov-
    ernment could ‘prove the negative’ in this case, however,
    does not mean that it would be easier for the government to
    do so.”); United States v. Hester, 
    719 F.2d 1041
    , 1043 (9th
    Cir. 1983) (“It is far more manageable for the defendant to
    shoulder the burden of producing evidence that he is a mem-
    ber of a federally recognized tribe than it is for the Govern-
    564                    UNITED STATES v. LOWRY
    ment to produce evidence that he is not a member of any one
    of the hundreds of such tribes.”).6
    Finally, we consider that 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 unwork-
    able 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. Nothing in the statute requires such a result,
    and we doubt that was the Secretary’s design in the regula-
    tions.
    [4] Having concluded that where authorization is claimed
    by virtue of individual aboriginal title, it is an affirmative
    defense to be raised by a defendant, we need not address
    whether the government provided sufficient evidence to
    negate Lowry’s right to individual aboriginal title. It is
    Lowry, and not the government, who has the burden to estab-
    lish individual aboriginal title. As we explain, we conclude
    that Lowry has not made even a prima facie showing that she
    satisfies the requirements for such a claim.
    B
    [5] The Supreme Court first introduced the doctrine of indi-
    vidual aboriginal title in Cramer v. United States, 
    261 U.S. 219
    (1923), to permit individual Indian tribe members to
    establish rights to land separate from their nomadic tribes.
    The Court described the individual right as similar in purpose
    to the right of tribal occupancy, but emphasized its individual
    6
    Arguably, the same logic may not hold true for records of special-use
    authorizations and Indian allotments, which the government may keep as
    to its National Forest Service land. However, as we previously noted, our
    holding is limited to the burden of proof for authorization based on indi-
    vidual aboriginal title.
    UNITED STATES v. LOWRY                  565
    nature as “based on occupancy alone” and “clearly fixed by
    the inclosure, cultivation and improvements” of the land.
    
    Cramer, 261 U.S. at 227-29
    , 235. We further defined the right
    to individual aboriginal title in United States v. Dann, 
    873 F.2d 1189
    (9th Cir. 1989), and United States v. Kent, 
    945 F.2d 1441
    (9th Cir. 1991). In Dann, we held that “[t]o establish
    such an individual right of occupancy, the [claimant] must
    show actual possession by occupancy, inclosure, or other
    actions establishing a right to the lands to the exclusion of
    adverse claimants.” 
    Id. at 1199
    (citing 
    Cramer, 261 U.S. at 236
    ). We further explained that the occupancy giving rise to
    a Cramer claim must have begun before the property was
    withdrawn from settlement, and that the claimant (or her lin-
    eal ancestors) must have then continuously exercised the right
    to occupy the land. 
    Id. at 1197-1200.
    We reiterated these fac-
    tors in Kent. 
    See 945 F.2d at 1444
    (individual aboriginal title
    can be established “when an Indian can show that she or her
    lineal ancestors continuously occupied a parcel of land, as
    individuals, and that the period of continuous occupancy com-
    menced before the land in question was withdrawn from entry
    for purposes of settlement.”) (citing 
    Dann, 873 F.2d at 1198
    -
    99) (emphasis in original)).
    [6] Under Cramer, Dann, and Kent, Lowry must demon-
    strate her continuous occupancy of the Oak Bottom land. She
    cannot do so. Although Lowry can demonstrate that at least
    one of her lineal ancestors, Bessie Tripp, dwelt continuously
    in the Oak Bottom area between 1926 and 1982, Lowry does
    not contend that Bessie continuously lived on the parcel of
    land Lowry currently occupies. Bessie Tripp resided for the
    period between 1926 and 1982 on Indian Allotment 280,
    which adjoins, but does not include, the property that Lowry
    currently occupies. Lowry argues that the distinction between
    these parcels is immaterial because Bessie Tripp and the other
    residents of Allotment 280 treated Lowry’s claimed parcel as
    part of their property. However, as the magistrate judge noted,
    Bessie resided on private property—Allotment 280—not on
    Forest Service land. There is no basis in the case law to
    566                    UNITED STATES v. LOWRY
    expand a claim of individual aboriginal title based on occu-
    pancy of one parcel of land to include another parcel that was
    never so occupied. Moreover, Bessie Tripp and the other resi-
    dents did not use the claimed parcel in any of the ways dis-
    cussed in Dann and Kent: There was no enclosure, no
    cultivation, and no residence on the property now occupied by
    Lowry.7 We conclude that Lowry has not presented evidence
    of continuous occupancy of the disputed land and conse-
    quently, fails to establish her claim of individual aboriginal
    title.
    IV
    Alternatively, Lowry argues that the magistrate judge
    improperly precluded her from presenting evidence of irregu-
    larities in the Forest Service’s prior denial of her request for
    an Indian allotment in 1990. She claims that her inability to
    challenge that denial violated her due process rights by fore-
    closing her defense that the Indian allotment proceeding was
    flawed and that, but for the flaws, she had a plausible ground
    for obtaining an Indian allotment. She asserts that, as a conse-
    quence, the denial of her allotment application “cannot be
    7
    Even assuming that Bessie Tripp’s occupancy at Allotment 280 some-
    how extended to the claimed parcel, Lowry still fails to make out a prima
    facie case of individual aboriginal title because she has not shown continu-
    ous occupancy since before the land was withdrawn from settlement. See
    
    Dann, 873 F.2d at 1197-99
    . As noted by the government, both Allotment
    280 and the land constituting Lowry’s residence were withdrawn from set-
    tlement either by President Theodore Roosevelt’s proclamation creating
    the Klamath National Forest in 1905, see Proclamation of May 6, 34 Stat.
    3001 (1905), or by the Forest Allotment Act in 1910, see Pub. L. No. 313,
    ch. 431, § 31, 36 Stat. 855, 863 (1910) (codified at 25 U.S.C. § 337).
    Because we must look to the period of unbroken occupancy extending
    back from the present, even assuming that Bessie Tripp’s occupancy at
    Allotment 280 somehow extended to the claimed parcel, the earliest
    Lowry could trace her lineal ancestor’s continuous occupancy was to 1926
    —the year Bessie returned to Allotment 280 to take up her residence—or
    at least 16 years after the property was withdrawn from settlement.
    UNITED STATES v. LOWRY                           567
    used as a critical part of” the instant criminal prosecution
    against her.
    [7] As the sole support for her collateral challenge, Lowry
    points to United States v. Mendoza-Lopez, 
    481 U.S. 828
    (1987). In Mendoza-Lopez, the Supreme Court allowed two
    Mexican nationals, who were charged with re-entry after
    deportation in violation of 8 U.S.C. § 1326, to introduce evi-
    dence of procedural due process violations that occurred in
    their deportation proceedings. 
    See 481 U.S. at 830
    , 837-39.
    However, the Court clearly limited such a “collateral chal-
    lenge” to situations “where the deportation proceeding effec-
    tively eliminates the right of the alien to obtain judicial
    review.” 
    Id. at 839
    (emphasis added). The Court considered
    whether “the violation of respondents’ rights that took place
    in this case amounted to a complete deprivation of judicial
    review of the determination,” to decide if the use of the depor-
    tation determination to enhance the respondents’ penalty for
    an unlawful entry under § 1326 would violate due process. 
    Id. at 840.
    The Court held that because the immigration judge
    “permitted waivers of the right to appeal that were not the
    result of considered judgments by respondents, and failed to
    advise respondents properly of their eligibility to apply for
    suspension of deportation,” the respondents had been
    deprived of judicial review. 
    Id. (concluding that
    “the waivers
    of their rights to appeal [from the deportation proceeding]
    were not considered or intelligent”).
    [8] Mendoza-Lopez does not justify Lowry’s collateral
    attack upon the Forest Service’s recommendation to deny her
    application for an Indian allotment.8 Lowry had a right to seek
    review of the denial in federal court, 25 U.S.C. § 345, or to
    8
    Under 25 U.S.C. § 337, the Secretary of the Interior makes the decision
    to make an Indian allotment, but his determination must be informed by
    the Secretary of Agriculture’s finding that the land is better suited to agri-
    culture or grazing than to timber. The Forest Service is an agency within
    the Department of Agriculture.
    568                   UNITED STATES v. LOWRY
    file an original action in district court, 28 U.S.C. § 1353.9 See
    Christensen v. United States, 
    755 F.2d 705
    (9th Cir. 1985).
    The availability of this relief undermines any possible appli-
    cation that Mendoza-Lopez might have in this case; the entire
    rationale of that case—that the respondents had been deprived
    of judicial review—simply bears no relevance to Lowry’s
    claim. Indeed, allowing Lowry to collaterally attack the
    administrative proceedings would effectively circumvent the
    six-year statute of limitations we have held governs review of
    such actions. See 
    Christensen, 755 F.2d at 707-08
    (holding
    that 25 U.S.C. § 345 gives federal courts jurisdiction over
    action seeking review of government’s failure to grant appli-
    cation for Indian allotment, but dismissing action as time-
    barred). Because Lowry declined to exercise her rights to seek
    judicial review of the denial of her application, the district
    court did not err in concluding that it lacked jurisdiction to
    consider Lowry’s collateral attack on her administrative pro-
    ceedings as part of the present criminal action.
    V
    For the foregoing reasons, we affirm the judgment of con-
    viction.
    AFFIRMED.
    9
    It is possible that the Administrative Procedure Act, 5 U.S.C. §§ 701-
    06, provided an additional avenue for judicial review.