U.S. v. Lowry, No. 06-10469 (1-16-08). If a tree falls in a forest, and only an aboriginal hears it, does the Forest Service care? You betcha. The 9th tackles the issue of whether an Indian, laying claim to Forest Service land, bears the burden of proving she has individual aboriginal title or does the Forest Service have to prove it as an element. The defendant here is a member of the Karuk people, who have occupied the Oak Bottom area of the Klamath National Forest in northern California from "time immemorial" (i.e. so long as the winds blow and streams run, but you know where this opinion is going). The defendant, convicted of unlawful occupancy, had argued that she had a right to the land as an Indian allotment. The Forest Service had denied her claim, because the land was in the Wild and Scenic corridor, was not being used for agricultural purposes, and she did not statutorily meet the requirements. The 9th ends up affirming the conviction because the defendant had the burden (relying somewhat on Kent, 945 F.2d 1441 (9th Cir. 1991) and she failed that burden. The defendant should shoulder the burden, reasoned the 9th, because it was easier for her to prove Indian ancestry, and continuous occupancy (in question here), and it would create a presumption of ownership for Indians if the claim was treated as an element. the trouble the defendant had here was a break in occupancy from ancient times, and the fact that she had been living on arguably a different parcel than the one she now claimed, and that was private.

Plumlee v. Masto, No. 04-15101 (1-17-08) (en banc). A defendant is facing criminal charges -- loss of liberty, fines, and the stigma of being branded a criminal. His whole life hangs in the balance. It is a serious charge. The defendant has issues with his appointed lawyer, but the trial court refuses to allow the public defender to withdraw, finding no conflict. The distrust is so great that the defendant states that he would rather represent himself than have the public defender, who he believes is undermining his case. "Done," said the trial court, and the defendant went pro per and was convicted. The state courts upheld. A panel of the 9th had reversed, but it went en banc, and the 9th (Silverman) held that the state courts were not unreasonable in denying the change of counsel as there were no conflicts that prevented representation. The state courts, in hearings, had concluded that the public defender had not acted against defendant's interests. Troubling, though, was the complete breakdown in the lawyer-client relationship, to such an extent that the client was forced, in his mind, to proceed without counsel. This struck Pregerson, who dissented, as a Sixth Amendment violation. Given the stance of the defendant, and the apparent breakdown, it struck Pregerson that it was unreasonable not to allow him a different counsel.