Appendix — Omaha Indian Tribe v. Jackson
Supreme Court brief1989
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IN THE
SEPH F. SPANIOL, JR.
JOS
Supreme Court of the Unit) St ters
OcTOBER TERM. 1988
Omaha INDIAN TRIBE. TREATY OF 1854 witH THE UNITED
Spares OF AMERICA (10 Stat. 1043), ORGANIZED PURSUANT
rO THE ACT OF JUNE 18, 1934 (48 Strat. 984; 25 U.S.C. 476)
1S AMENDED
Petitioner,
Vv.
HarRoL_bD JACKSON AND OTIS PETERSON AND THE DisTtRICI
CouRT OF IOWA IN AND FOR MONONA COUNTY
Respondents.
* * * *
OmaHa INDIAN Tripe. TREATY OF 1854 with THE UNITED
STATES OF AMERICA (10 Stat. 1043), ORGANIZED PURSUANT
>TO THE ACT OF JUNE 18, 1934 (48 Stat. 984: 25 U S.C. 476)
\S AMENDED
Petitioner,
oP
AGRICULTURAL & INDUSTRIAL INVESTMENT COMPANY, JOHN R
WILSON. CHARLES E. LAKIN, FLORENCE LAKIN: R.G.P.. IN¢
WW Lowa CORPORATION: HAROLD JACKSON: OTIS PETERSON
Darrett L. Haroitp, AND LUEA SORENSON: STATE OF IOWA
Wp lowa DEPARTMENT OF NATURAL RESOURCES
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNTEFED SPATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA
WILLIAM H. VEEDER
Suite 920
S18 18th Street. N.W.
Washington, D.C. 20006
(202) 466-3890
trrorncy for Omaha Indian Tribe
Ol Nebraska Petitioner
No.
IN THE
Supreme Court of the United States
OCTOBER TERM 1988
Omaha Indian Tribe, Treaty of 1854 with the United States
of America (10 Stat. 1043), Organized pursuant to the Act of
June 18, 1934 (48 Stat. 984; 25 U.S.C. 476) as amended,
Petitioner,
Vv.
Harold Jackson and Otis Peterson and the District Court of
lowa in and for Monona County,
. Respondents.
xx * *&
Omaha Indian Tribe, Treaty of 1854 with the United States
of America (10 Stat. 1043), Organized pursuant to the Act of
June 18, 1934 (48 Stat. 984; 25 U.S.C. 476) as amended,
Petitioner,
Agricultural & Industral Investment Company; John R.
Wilson; Charles E. Lakin, Florence Lakin; R.G.P., Inc., an
lowa Corporation; Harold Jackson; Otis Peterson; Darrell
L., Harold, and Luea Sorenson; State of Iowa and lowa
Department of Natural Resources,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
WILLIAM H. VEEDER
Suite 920
818 18th Street,
Washington, D.C. 20006
(202) 466-3890
Attorney for Omaha Indian
Tribe of Nebraska Petitioner
APPENDIX A:
APPENDIX B:
APPENDIX C:
APPENDIX D:
APPENDIX E:
APPENDIX F:
APPENDIX G:
APPENDIX H:
APPENDIX I:
APPENDIX J
APPENDIX K:
APPENDIX L:
APPENDIX M:
APPENDIX N:
APPENDIX O:
APPENDIX P:
2a
APPENDIX INDEX
United States v. Wilson; Omaha vy. Jackson, et
al.; Omaha yv. Agricultural (hereafter referred
to as Omaha y. Wilson) 578 F. Supp. 1181
(U.S. DCN GD howe ee ee ia ieee.
Final Judgment and Decree, May 29, 1987,
United States v. Wilson; Omaha Indian Tribe
v. Jackson; Omaha Indian Tribe v. Agricul-
tural... Wilson; Order dated June 30, 1987,
amending Final Judgment and Decree............
Omaha Indian Tribe y. Jackson, 854 F. 2d
16S GOK BRR
Order of the Court of Appeals, dated Novem-
ber: 30). PRG oes a ‘
Order of the Supreme Court. dated January
1S, 1969: occ eee eos
RE: U.S. y. Wilson; Omaha Indian Tribe y.
Jackson; Omaha Indian Tribe vy. Agricultural
... Wilson, 523 F.Supp. 874 (U.S.D.C.N.D.lo-
Wn WED. Ee aires oa sea iedatenna,
United States v. Wilson, 707 F.2d 304 (CA
SPB I). oisssscsscecses ee ee ee
Wilson v. Omaha, 442 U.S. 653 (1979). ..........
Omaha v. Wilson, 575 F.2d 620 (CA 8, 1978)....
United States vy. Wilson, 433 F.Supp.57
(U.S.D.C.N.Difowa Woe 19 Fis
United States v. Wilson, 433 F. Supp.67
(U.S.D.C.N. BD fowa Wii 49 tees
Complaint for Injunction, Omaha v. Jackson,
Peterson, and the District Court of Monona
County, filed May 20, 1975, C 75-4026 (select-
OC PROOS). .« sacaiscssscsctesnmubemmntonticnaaenetnemenice canes
Order dated June 3, 0975: cicero
Complaint, United States v. Wilson, filed May
19. 1975, C TSeRG28 a ante a
Complaint, Omaha Indian Tribe \.
Agricultural... Wilson, filed October 6, 1975,
C 75-4067, Petitioner Tribe’s action to quiet
title to 6390 SCHOR certs terms:
Petitioner Tribe’s Motion for Summary
Judgment...dated January 9, 1986, with
attached Affidavit Elmer M. Clark. ...............
Sa
189a
256a
yi 9
-O3a
269a
276a
APPENDIX Q:
APPENDIX R:
APPENDIX S:
APPENDIX |:
APPENDIX U:
APPENDIX V:
APPE
APPENDIX X:
APPENDIX Y:
APPENDIX Z:
APPENDIX AA:
APPENDIX BB:
APPENDIX CC:
APPENDIX DD:
NDIX W:
Lakin y. State of Iowa, Petition in Equity, No.
17400, dated November 1963. ..................000.
Lakin v. State of Iowa, Answer and Disclaimer
of Evan L. Hultman, State of Iowa. ................
Peterson v. State of Iowa, Petition, Equity No.
17674 and Amendment to Petition, dated
ee ee aa gadanbiabaksennanwene
Peterson v. State of lowa, Answer by Evan L.
I I OU BON oa ioaincscitenadnssaneseeanees
Petitioner Tribe’s Motion To Have Disquali-
fied Evan L. Hultman, dated Nov. 1985
SIR IIE, van ccscceasanasapsnaevecvanasastecnsesseanseee
Evan L. Hultman’s Opposition to Motion to
Disqualify, dated December 20, 1985. ...........
Petitioner Tribe’s Reply to Evan L. Hultman’s
Opposition, dated February 1986. with
attached Memorandum of Charles P. Corke.
Bureau of Indian Affairs representative and
SNUIEINE AE We WONINEE, © ooops ccoecscescscocsvecasadesnencasecanes
Order dated February 21, 1986, Denial of
Motions to Disqualify and for Summary
aid alwevausnsedsvadenedacasatins
Petitioner Tribe’s Application To Dismiss or
Hold in Abeyance the case of United States \
Pree CME SUMO 3, 197S.. ..nccccccccccsssccenseseess
Response of Evan L. Hultman, United States
Attorney, to Petitioner Tribe’s Motion To Dis-
miss or Hold in Abeyance, dated June 16,
~
Order dated July 1, 1975.
Answer to Petitioner Tribe’s Quiet Titie Com-
plaint in Omaha vy. Wilson, C 76-4067 by
Respondents Wilson, Jackson, and Lakin (se-
rss crespiseeravdaencaawsssess spndleasaenen: 37
Answer to Petitioner Tribe’s Quiet Title Com-
plaint in Omaha vy. Wilson, C 75-4067 by
Respondents R.G.P., Inc. and Otis Peterson
nas cok yanbenseuasnksswansesanadsassiess
Answer and Counterclaim to Petitioner Tribe's
Quiet Title Complaint in Omaha y. Wilson, C
75-4067 by Respondent State of Iowa (selected
RIE cist cad pasatusadsaranntacecenncuchshadceuaccnvnncaceneteaiecs
Page
297a
304a
307a
318a
321a
329a
384a
APPENDIX EE:
APPENDIX FF
APPENDIX GG:
APPENDIX HH:
APPENDIX II:
APPENDIX JJ
APPENDIX KK:
APPENDIx LL
APPENDIX MM
APPENDIX NN
APPENDIX OO
APPENDIX PP
APPENDIX QQ
APPENDIX RR
4a
Answer and Counterclaim to Petitioner Tribe’s
Quiet Title Complaint in Omaha v. Wilson, C
75-4067 by Respondent Sorenson. .................
Order of Consolidation Petitioner Tribe's
Omaha y. Wilson with United States vy.
afl RS LU e FAC APRN aS SV ORO aR
Amendment to Order of Consolidation [copy
missing]5, 1976, entered Sua Sponte. ..............
Petitioner Tribe’s Motion for a Protective
Order, dated September 3, 1976, against the
FEI FN os ccccinnasncctstcssonessccuntinossenences
Order, dated October 29, 1976, granting in
part and denying in part Petitioner Tribe’s
Motion for a Protective Order against Justice
ENNIS <1. sss nc domuaeecnc duiiolienmeasasieeoreiceseneneis
Order Amending the Order of October 29,
1976, allowing Petitioner Tribe to Cross-exam-
ine Department of Justice Witnesses, T.R. No-
WOSIIEE TD. NO FO caccsseaigscdsaommiareasumensmznae
Motion and Objection of Introduction of Evi-
dence by the Justice Department, T.R. dated.
PGI Br Be Fe co eissiscdataccnectacbucscanectustents
Order of March 9, 1987, District Court: * The
District Court has not heard and will not hear
Petitioner Tribe’s charges of fraud against De-
partment of Justice Attorneys........... seeaneiveeunots
Order dated April 1, 1987, declaring Petitioner
Tribe had not been denied mght to be heard
Ce ERNE I aerate,
Order dated May 1, 1987, modifying and clari-
ime eee 1 TR 7 CI siscscccnnrancectacvsesenennen.
Petitioner Tribe’s Petition for Writ of Manda-
mus....to Court of Appeals for Eighth Circuit,
dated June 12, 1986 (selected pages)...............
Response to Petitioner Tribe’s Petition for
Writ of Mandamus, Brief of the United
NRA... ce eraliuaus eee anemaaiein gia cadaricae ons
Order dated July 16, 1986, denying Petitioner
Tribe’s Petition for Writ of Mandamus. .........
Order dated July 18, 1988, denying Petitioner
Tribe’s Motion to Recuse Chief Judge Lay. ....
416a
418a
419a
427a
430a
435a
4434
450a
46la
462a
APPENDIX A
UNITED STATES of America, Plaintiff,
v.
Roy Tibbala WILSON, er ai.,
Defendants.
OMAHA INDIAN TRIBE, Organized Indian Tribe pursuant to
Act of June 18, 1934 (48 Stat. 984) as amended, Plaintiff.
V.
HAROLD JACKSON and Oris P. PETERSON
and the District Court of lowa In and
For Monona County, Defendants.
OMAHA INDIAN TRIBE, eIc..
Plaintiffs,
ie
AGRICULTURAL INDUSTRIAL
INVESTMENT COMPANY, et al.,
Defendants
United States District Court,
N.D. Iowa. W.D.
Jan. 13, 1984.
James J. Clear, Dept. of Justice, Land & Natural Re-
sources Div., Washington, D.C., for United States of America.
William H. Veeder, Washington, D.C., for Omaha Indian
Tribe.
|
6a
Robert J. Becker, Donald Buresh, Omaha, Neb., for Roy
Tibbals Wilson.
Peter J. Peters, Council Bluffs, lowa, for RGP, Inc. and
Otis Peterson.
Elizabeth M. Osenbaugh, Asst. Atty. Gen., Thomas J.
Miller, Atty. Gen., John P. Sarcone, Asst. Atty. Gen., Des
Moines, Iowa, for State of lowa and lowa State Conservation
Com’n.
Maurice Nieland, Sioux City, lowa, for Harold Sorenson
and Luea Sorenson.
BOGUE, Chief Judge.
THE DISPUTE
The extensive history of this dispute indicates that it
may die of old age before it can be sucessfully adjudicated.
This case was filed in 1976. Originally, it involved approxi-
mately 11,000 acres of land adjacent to the Missouri River
in an area known as Blackbird Bend. The issues were severed,
however, and initially, the land area involved was confined
by the Court to an area known as the Barrett Survey Area
which contains approximately 2900 acres. After chipping
away at the issues involved in this dispute, only. ownership
of approximately 700 acres of that land is still in question.
Other remaining issues must await settlement of the title
question.
Title to 2200 of the 2900 acres in dispute was ordered
quieted by the Eighth Circuit Court of Appeals based on
appointment of burden of proof and a presumption of title
based on the failure of a party to meet its burden. This Court
must decide for the third time whether the party having the
burden of proof has succeeded. Ultimately, whether any
party prevails on the merits must be settled. This Court holds
that again the parties with the burdens of proof failed and
therefore lose.
“
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FACTS
For detailed discussions of the facts see the previous
opinions in this dispute.’ Omaha III, 707 F.2d 304 (8th
Cir.1982); Blackbird Bend II, 523 F.Supp. 874 (N.D.la 1981;
Omaha II, 614 F.2d 1153 (8th Cir. 1980); Wilson v. Omaha
Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153
(1979); Omaha I, 575 F.2d 620 (8th Cir.1978); Blackbird
Bend I, 433 F.Supp. 57, 67 (N.D.1a.1977).
Initially, this case was a classic accretion versus avulsion
case. If, on the merits, the Court found that the Missouri
River moved by avulsion, then title would be quieted in the
Tribe. Conversely, if the Court found movement by accre-
tion, title would be quieted in the Defendants. Of course, a
multitude of combinations were also possible. However, time
and evidence proved too much. Twice this Court held that
all relevant movements of the Missouri River were through
accretion. Twice, the Court of Appeals characterized these
findings as an “educated guess” and extremely “specula-
tive.”Omaha I, 575 F.2d at 648; Omaha IJ, 614 F.2d at 1160.
The Court of Appeals overturned the fact findings as clearly
erroneous. Omaha II, 614 F.2d at 1160.
After the Court of Appeals issued its mandate in Omaha
III, this Court directed the parties to submit Post-Appeal
Findings and Conclusions. See Order filed July 18, 1985.
The parties again painstakingly prepared proposed findings
and conclusions. See Proposed Post-Appeal Findings of Fact
and Conclusions of Law filed by: the State of Iowa, and
the jowa Conservation Commission; the United States; the
Omaha Indian Tribe; and Wilson, Lakin, RGP Inc. and
Peterson.
The parties again point to the evidence in the record
which purportedly supports their respective positions con-
cerning accretion and avulsion. The Eighth Circuit, of course,
has foreclosed any finding of accretion. The question remain-
ing is whether the Tribe can prove avulsions by a preponder-
' The Court will refer to the Court of Appeals’ former decisions as
Omaha I. Omaha II, and Omaha III. The Court will refer to its own
decisions as Blackbird Bend I and Blackbird Bend I]
da
ance of the evidence. The Court of Appeals disclaimed any
opinion on the question:
Although we indicated the landowners’ proof was specu-
lative whether the river moved by avulsion or accretion
in both Omaha I and Omaha II, we did not assess the
evidence in terms of whether the Tribe carried its burden
of proof that there was avulsive movement to sustain the
claim of the Tribe.
Omaha III, 707 F.2d at 309
Reduced to its simplest terms, the issue becomes whether
considering the evidence and the rulings of the Court of
Appeals, the river banks were washed away particle by particle
and likewise deposited elsewhere, or whether the thalweg
moved by jumps. In Blackbird Bend I, tne Court held that
its finding of accretion was “supported by a preponderance
of the evidence and would not be altered by any different
allocation of the burden of persuasion.” 433 F.Supp. at 67.
The Eighth Circuit held that this was based on an erroneous
definition of avulsion. However, the Court subsequently
confronted the same question in Blackbird Bend II after the
Court of Appeals ruled on the proper definition of avulsion
and again found that all river movements were accretive.
523 F.Supp. at 899. The Court of Appeals did not hold that
the Court was again wrong.
The Court has reviewed the extensive Proposed Findings
and Conclusions. Nothing is gained by recataloguing the
evidence here. The Court will not alter its view of the
evidence. The Court of Appeals has foreclosed that view
becoming the foundation of a decision. As a result of this
Court’s view and the Court of Appeals mandates, no party
can meet its burden of proving accretion or avulsion. This
case then turns on the questions of law which are settled.
Ya
BURDEN OF PROOF
In Blackbird Bend I, the Court examined the law and
held that 25 U.S.C. § 194 [Section 194] did not apply to this
case.* 433 F.Supp. at 57, 66. The Eighth Circuit and Supreme
Court agreed that this was error. Omaha I, 575 F.2d 620,
633: Wilson vy. Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct.
2429, 2538, 61 L.Ed.2d 153 (1979). The Eighth Circuit and
the Supreme Court disagreed on which defendants were
“white persons” subject to Section 194. The Eighth Circuit
held that all defendants were “white persons” subject to
Section 194. 575 F.2d at 633. However, the Supreme Court
held that the State of Iowa, a sovereign, was not a “white
person”. 99 S.Ct. at 2538. The burden of proof was, therefore,
shifted to all defendants except the State of Iowa.
This simple shifting of the burden of proof became
critical when the Court of Appeals overturned this Court’s
fact findings.’ The Tribe, as the Plaintiff in this action, would.
under normal circumstances have the burden to prove its
case. But, Section 194 operated to piace the burden of proof
on the private Defendants. The Tribe, as Plaintiff, retained
its burden of proving its title to land claimed by the State of
lowa.
Omaha III further clarified the effect of Section 194. The
Court of Appeals examined how Section 194 affected the
burden of proof concerning the land which had been fee
patented.
Thus, as in the controversy involving the State, we
deem it important that the Tribe must carry its
burden of proof of rightful ownership as to this
land. Because Section 194 is not applicable to these
725 U.S.C. § 194 states:
in all trials about the right of property in which an Indian may be a party
on one sidé, and a white person on the other, the burden of proof shal! rest
upon the white person, whenever the Indian shall make out a presumption
of title in himself from the fact of previous possession or ownership
(emphasis added)
3In Blackbird Bend I, this Court did place the burden on Plaintiffs.
However, the Court also stated that this burden allocation was in no way
dispositive. The Court was convinced that its findings were supported by
a preponderance of the evidence. 433 F.Supp. at 67.
1Va
400 acres, it is clear that the burden of proof does
not rest on the landowners.
707 F.2d at 309.
The Court of Appeals in a footnote, however, delegated
another factual task to the Court to be decided before assign-
ment of the burden can be settled.
The record is not clear as to which lands within the
disputed 700 acres were divested by the Indian Tribe
and the government and which were not. The Tribe
contends some of the area was allotted land relinquished
back to the Tribe. See Plate 1. Assuming the Tribe can
establish that land was relinquished back to the Tribe, if
the !and is not otherwise claimed by the State of Iowa,
title to such relinquished land should be quieted in the
Tribe, as trust land as we ruled in Omaha I].
707 F.2d at 309, n. 8.
There appears to be no dispute on which parcels of land
were allotted and relinquished and on which parcels patents
were issued and later cancelled. See Proposed Findings of
the United States at p. 3-5; Proposed Findings of the State
of lowa at p. 1-3; Memorandum of Defendants Wilson, Lakin,
RGP, Inc., and Peterson at p. 1-3; Memorandum of Points
and Authorities of Omaha Indian Tribe at p. 15-16. The
private Defendants further concede that unless patented, the
lands never left trust status. Memorandum of Wilson, et al.
at p. 2. However, the United States indicates that portions
of some of the parcels are not contained within the Barrett
Survey Area. To the extent that any portion of any of these
tracts is not contained within the Barrett Survey Area, this
Court states no opinion as to the disposition of such land.
Because of application of Section 194 and the directive of
the Court of Appeals, all allotted lands contained in the 700
acres still in dispute, which were not fee patented and which
are not otherwise claimed by the State of Iowa, wiil be quieted
in the Tribe after survey and settlement of the improvements
issue as discussed later in this Opinion. Therefore, ail that
is left for the Court to decide is the disposition of lands
eV
lla
claimed by the State of lowa and parcels of land which are
described in non-cancelled fee patents.
LANDS CLAIMED BY IOWA
Because this Court in Blackbird Bend I] determined that
all movements of the Missouri River over the Barrett Survey
Area were accretive, the Court concluded that the Western
land must also belong to the Tribe as accretions to land
ordered quieted in the Tribe by the Eighth Circuit. 523
F.Supp. at 899. In Omaha III, the Court of Appeals held
that Blackbird Bend IJ’s reasoning, while tempting, was again
erroneous. 707 F.2d at 308. The Court of Appeals held that
this reasoning allowed the Tribe to bootstrap its victory via
Section 194. Jd. The Court of Appeals concluded that Section
194 could have no part in settling the controversy against the
state. 707 F.2d at 308.
Basically the Court of Appeals ordered the Tribe to
return to the beginning. The Tribe must prove on the merits
its entitlement to the eastern Barrett Survey land before this
Court’s holding that the western lands were accretions would
have any legal significance.* This, of course, demands that
the Tribe show that from 1879 to 1923 the original boundary
of the reservation remained unchanged because all river
movements in that time period were avulsive.. The Court
holds that the Tribe cannot prevail against the State of lowa
as to any lands included in the 700 acres and claimed by the
state because it cannot sustain its burden of proof.
‘As noted in the previous discussion in Blackbird Bend II, this Court
stated:
This Court does not deviate from :ts orginal judgement that the
Missouri River moved over the Barret Survey—in all relevant
periods—by accretion... 523 F.Supp. at 899
* The Omaha III Court stated:
We did not hold that the Tribe established that the original boundary
to the reservation remained unchanged by reason of avulsive movements
from 1879 to 1923, thereby establishing continuing ownership of the Tribe
in the trust land. We deem such proof essential for the Tribe. . .to establish
ts} claim to the nontrust lands
07 F.2d at 310 (emphasis added)
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FEE PATENT LANDS CLAIMED BY
OTHER DEFENDANTS
The Omaha III Court imposed the identical burden of
proof on the Tribe concerning fee patented lands claimed by
the private Defendants. 707 F.2d at 309. Therefore. the
discussion in the previous section of this Opinion fully applies
here. The Tribe has the burden of proving by a preponderance
of the evidence that the original boundary of the reservation
remained the same because of avulsive movements of the
Missouri River. For the reasons previously stated, the Court
holds the Tribe failed to meet that burden.
QUIETING TITLE IN THE DEFENDANTS
The foregoing findings and conclusions preclude quieting
title in the Tribe to any of the 700 acres in question here,
except for the land which was allotted and later relinquished
to the Tribe. Does foreclosing the Tribe from a quiet title
decree automatically mean that title is quieted in the
Defendants?
The Court of Appeals latest opinion stated:
We therefore remand this case to allow the district court
to determine whether the Tribe has met its burden of
proof so defined herein. If it holds that the Tribe failed
to meet its burden, it must then determine whether the
private parties and the State of Iowa are entitled to have
title to the tracts of land in controversy quieted in them.
Omaha III, 707 F.2d at 310.
This open-ended and unexplained directive seems to
contemplate something more for the Defendants to prevail.
The State of Iowa argues that because nothing more was_
required of the Tribe, failure of the Tribe to meet its burden
should be sufficient here. However, the State’s argument
ignores a critical aspect of Section 194. Section 194 operates
not only to shift the burden, but also to raise a presumption
of title in the “Indian”. See supra note 2. Of course. it is
now settled that the Tribe is an “Indian” entitled to the
+
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benefits of Section 194. Omaha Indian Tribe, 442 U.S. at
665-7, 99 S.Ct. at 2536-7. Thus, when the Court of Appeals
ordered title quieted in the Tribe, it appears that its ruling
was founded on the presumption afforded the Tribe by appli-
cation of Section 194.
Defendants, to the extent that they succeed, prevail on
the basis of imposition of the burden of proof on the Tribe.
They benefit from no corresponding presumption of good
title. Therefore, considering the basis of the Court of Appeals’
Order, it seems proper to allow Defendants to prevail only
“upon the strength of their own title rather than on the
weakness of that of the [Tribe]”. See Omaha III, 707 F.2d
at 310, n. 9.
The Court has carefully reviewed the Proposed Findings
and Conclusions and Memoranda of Law submitted by the
parties. It appears that the Court should determine the rights
of the parties under the pleadings and evidence, and grant
the proper relief by determining the better title as between
the parties to the proceeding, even though a non-party may
later assert a title superior to all the parties. 65 AmJur.2d,
Quieting Title, § 46.
The Tribe argues that even if it fails to meet its burden,
that title cannot be quieted in any other party. See Memoran-
dum of Points and Authorities in Opposition to Defendants’
Request to Have Title Quieted in Them. The Tribe argues
that all titles are defective because they “are predicated on
trespass originating in 1925 with ‘squatter’ Joe Kirk.” Id. at
p. 4.
However, this argument presumes the Tribe prevailed
on the merits and established that as to the Tribe, Joe Kirk
was a “trespasser” or “squatter”. The Tribe failed to prove
entitlement to the land on the merits. At this point, the
private Defendants have produced record titles. See Wilson
Exhibits W, X, Y, Z, AA and BB. This is sufficient to quiet
title as against the Tribe. See e.g. U.S. v. Oregon, 295 US.
1, 25-26, 55 S.Ct. 610, 620, 79 L.Ed. 1267 (1935); Omaha
III, 707 F.2d at 310, n.9.
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Likewise, the State of lowa produced record title to the
land it claims. See Exhibits M8, N8, O8 and T8. The title
is not traceable to fee patents. However, it is better title than
that produced by the Tribe. Therefore, the State of Iowa has
presented a sufficient record to obtain a quiet title decree as
against the Tribe. Because of the Court’s disposition it 1s
unnecessary to address the applicability of adverse
possession.
IMPROVEMENTS
In Omaha III, the Court of Appeals held:
[T]he the duty to pay for the value of improvements
is an element of the government’s own claim [and] a
condition precedent to the mght of the United States to
recover...
707 F.2d at 312.
Therefore, it appears that quieting title in the land
claimed by the Tribe must await disposition of the improve-
ments issue and a survey of the parcels involved. The Court
in its Order filed July 18, 1983 stated:
After thé Court rules on land ownership questions, the
case will be transferred back to the Northern District of
lowa for further proceedings deemed necessary to resolve
the improvement issues and all remaining motions.
This Court will hear any dispute which would arise
from reversal of this Opinion. Otherwise, the case will be
transferred to Judge McManus in accordance with this
Court’s Order filed July 18, 1983.
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CONCLUSION
After eight years of litigation and appeals. land ownership
in this case is not decided on the merits. All disputes
involving the 2900 acres of land are settled simply by the
apportionment of the burden of proof. The Tribe originally
won its claim to 2200 acres because of the allocation of the
burden which resulted from application of Section 194. The
Court of Appeals held that the Defendants claiming the 2200
acres simply failed to meet their burden according to the
Court of Appeals. The State of lowa and Defendants claiming
fee patent lands prevail here because of application of the
burden of proof, absent the aid of Section 194. The Tribe
failed to sustain its burden.
The Court happened upon an ancient legal maxim which
appears appropriaie here, “Idem est non probari et non esse;
non deficit jus, sed probatio.” Roughly translated, “What is
not proved and what does not exist are the same; it 1S not a
defect of the law, but of proof.” Black’s Law Dictionary, Sth
ed. (1979).
This Opinion shall constitute the Court's findings of fact
and conclusions of law.
ae hn eee thin nana
l6a
APPENDIX B
IN THE
United States District Court
FoR THE NORTHERN District OF IOWA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
VS. C 75-4024
JOHN R. WILSON, ef al.
Defendants.
OMAHA INDIAN TRIBE, @!C., a: C 75-4026
Plaintiff, FINAL
VS. JUDGMENT
HAROLD JACKSON, ef al., ae" eee
Defendants. May 30, 1987)
OMAHA INDIAN TRIBE,
Plaintiff,
VS.
C 75-4067
AGRICULTURAL INDUSTRIAL
INVESTMENT Co., et al.,
Defendants.
The above actions were initially assigned to Chief Judge
Edward J. McManus who entered a preliminary injunction
on June 5, 1975, giving temporary possession of the land
within the Barrett Survey to the Omaha Indian Tribe. The
cases were then assigned to The Honorable Andrew W. Bogue.
United States District Judge for the District of South Dakota,
for disposition on May 5, 1976. Judge Bogue transferred the
cases back to Chief Judge Edward J. McManus on January
13, 1984.
Cases No. C 75-4024, No. C 75-4026, and the consoli-
dated portion of No. C 75-4067 relating to the Barrett Survey
l/a
area. were tried to the court from November | to December
6. 1976, before Judge Bogue. Upon the evidence submitted
by the respective parties and upon the entire record, Judge
Bogue, upon remand from the Eighth Circuit Court of Ap-
peals, United States v. Wilson, 707 F.2d 304 (8th Cir. 1982),
fled a memorandum opinion on January 13, 1984. United
States v. Wilson, 578 F.Supp. 1191 (N.D. lowa 1984), consti-
tuting the court’s findings of fact. conclusions of law and
order, which are fully incorporated by reference herein except
to the extent herein amended, modified or supplemented.
Pursuant to the court’s order filed April 23, 1985, the
Bureau of Land Management of ine Department of the
Interior conducted a final survey of those lands encompassed
by or located within the 1867 Barrett Meander Line in the
State of Iowa. the title to which shail be quieted in the United
States as trustee for the Tribe. The metes and. bounds
descriptions were prepared from the survey of Fractional
Tps. 24.N., Rs 10 and 11 E.. Sixth Principal Meridian, lowa
and Nebraska, approved by the BLM on January 16, 1986,
and approved by the court on June 11, 1986. The phrase
“monument described in the official record” as used in this
order refers to the monuments described in the field notes of
said survey.
It is therefore.
ORDERED, ADJUDGED AND DECREED
1. Upon payment by the United States for improvements
as set forth below, fee simple title shall be quieted in the
United States as Trustee for the Omaha Indian Tribe as
against the defendants in and to the following described
lands:
A + or -— !923.09 acre tract of land situated in
Monona County, lowa, to-wit:
Commencing at the meander corner of sections 19
and 24. T. 84.N., Rs. 46 and 47 W.. Fifth Principal
Meridian. Iowa, thence S. 49°57’ W., a distance of
39.42 chains, to the special meander corner on the
north-south center line of fractional section 11, T.
18a
24.N., R. 10 E., Sixth Principal Meridian, lowa.
which is the true point of beginning, thence
S. 36°38’ E., a distance of 25.0] chains, to
the monument described in the official record,
thence S. 53°08’ E.. a distance of 23.2? chains,
to the monument described in the official record,
thence S. 63°34’ E., a distance of 6.74 chains,
to the monument described in the official record,
thence S. 79°44’ E., a distance of 40.65 chains,
to the monument described in the official record,
thence N. 84°17’ E., a distance of 40.20 chains,
to the monument described in the official record,
thence N. 88°13’ E., a distance of 40.02 chains,
to the monument described in the official record,
thence S. 87°08’ E., a distance of 40.05 chains
to the monument described in the official record,
-thence S. 54°00’ E., a distance of 22.2] chains,
to the monument described of in the official
record, thence S. 10°02’ E., a distance of 20.26
chains, to the monument described in the official
record, thence S. 10°59’ W., a distance of 20.32
chains, to the monument described in the official
record, thence S. 23°16’30” W.. a distance of
21.83 chains, to the monument described in the
official record, thence S. 34°42’ W.. a distance
of 15.81 chains, to the monument described in
the official record, thence S. 70°59’ W.. a dis-
tance of 21.18 chains, to the monument de-
scribed in the official record. thence WEST,
a distance of 19.98 chains. to the monument
described in the official record, thence N. 79°04’
W., a distance of 20.41 chains, to the monument
described in the official record, thence S. 85°] 3’
W., a distance of 20.03 chains, to the monument
described in the official record, thence S. 81°00’
W., a distance of 12.42 chains, to the monument
described in the officiai record, thence S. 89°59’
W.. a distance of 27.74 chains. to the monument
described in the official record, thence S. 87°33’
19a
W.. a distance of 40.04 chains, to the monument
described in the official record, thence S.
82°19’30” W., a distance of 0.406 chains, to
the monument described in the official record,
thence N. 45°13’00” W., a distance of 0.454 i
chains, to the monument described in the official
record, thence N. 66°58’12” W., a distance of
5.036 chains, to the monument described in
the official record, thence S. 81°39’12” W., a
distance of 2.139 chains, to the monument de-
scribed in the official record, thence S. 62°22’30”
W..a distance of 2.290 chains, to the monument
described in the official record, thence S.
49°38’06” W., a distance of 3.898 chains, to
the monument described in the official record,
thence S. 78°31'12” W., a distance of 0.347
chains, tothe monument described in the official
record. thence S. 82°19’30” W., a distance of
2.700 chains, to the monument described in
the official record, thence N. 82°29’12” W.,
a distance of 8.130 chains, to the monument
described in the official record, thence N.
67°26'54” W., a distance of 3.892 chains, to
the monument described in the official record,
thence N. 57°41’42” W., a distance of 7.074
chains, to the monument described in the official
record. thence N. 41°51’54” W., a distance of
7.781 chains, to ihe monument described in the
official record, thence N. 9°44’18” W., a distance
of 11.428 chains, to the monument described
in the official record, thence N. 10°36’36” W.,
a distance of 0.055 chains, to the monument
described in the official record, thence EAST,
a distance of 0.280 chains, to the monument
described in the official record, thence EAST,
a distance of 20.00 chains, to the monument
described in the official record, thence N. 0°09’
E.. a distance of 20.00 chains, to the monument
described in the official record, thence N. 89°59’
| OOOO Vow
20a
E., a distance of 19.94 chains, to the monument
described in the official record, thence N. 0°01’
W., a distance of 20.00 chains, to the monument
described in the official record, thence S. 89°59’
W., a distance of 39.76 chains, to the monument
described in the official record, thence N. 0°19’
E., a distance of 40.00 chains, to the monument
described in the official record, thence NORTH.
a distance of 34.00 chains, to the monument
described in the official record, to the true point
of beginning.
A + or-14.18 acre tract of land situated in Monona
County, lowa, to-wit:
Commencing at the meander corner of sections 19
and 24, T. 84.N., Rs. 46 and 47 W.., Fifth Principal
Meridian, lowa, thence S. 26°53’ W.. a distance
of 111.42 chains, to the center west one-sixteenth
section corner of fractional section 14, T. 24 N.. R.
10 E., Sixth Principal Meridian, Iowa, which is the
true point of beginning, thence
S. 89°59’00” W., a distance of 3.778 chains. to
the monument described in the official record.
thence N. 1°12’30” E., a distance of 1.97]
chains, tothe monument described in the official
record, thence N. 9°01’30” W., a distance of
2.699 chains, to the monument described in the
official record, thence N. 14°23’06” W.. distance
of 2.951 chains, to the monument described in
the official record, thence N. 4°56’48” E.. a
distance of 2.764 chains. to the monument de-
scribed in the official record, thence N. 8°51’30”
E., a distance of 1.865 chains, to the monument
described in the official record, thence N.
2°25'48” W., a distance of 3.556 chains. to
the monument described in the official record.
thence N. 3°56’42” W., a distance of 2.32?
chains, tothe monument described in the official
record, thence N. 2°02’54” E.. a distance of
nN
2la
) 222 chains. to the monument described in the
officia! record. thence N. 9°06’36” E., a distance
of 3.278 chains, to the monument described in
the official record, thence N. 6°21’00” E., a
distance of 0.221 chains, to the monument de-
scribed in the official record, thence N. 8°21’00”
E.. a distance of 3.674 chains, to the monument
described in the official record, thence N.
10°27’12” E.. a distance of 3.418 chains, to
the monument described in the official record,
thence N. 21°39’54” E., a distance o1 2.086
chains. to the monument described in the official
record. thence N. 36°00’36” E., a distance of
1.979 chains. to the monument described in
the official record, thence N. 23°39’00” E., a
distance of 1.587 chains, to the monument de-
scribed in the official record, thence N.
36°34’54” E.. a distance of 0.721 chains, to
the monument described in the official record,
thence S. 0°19’ W., a distance of 36.80 chains,
to the monument described in the official record,
to the true point of beginning.
A + or-0.27 acre tract of land situated in Monona
County, lowa, to-wit:
Commencing at the meander corner of sections 19
and 24. T. 84N.., Rs. 46 and 47 W., Fifth Principal
Meridian. lowa, thence S. 64°05’ W., a distance of
44.38 chains. to the special meander corner on the
east-west center line of fractional section 11, T. 24
NR. 10E.. Sixth Principal Meridian, lowa, which
is the true point of beginning, thence
WEST. a distance of 1.820 chains, to the monu-
ment described in the official record, thence N.
9°18’42” E.. a distance of 2.966 chains, to the
monument described in the official record,
thence S. 29°51’00” E., a distance of 3.416
chains. to the monument described in the official
record, to the true point of beginning.
22a
The United States shall make payment within 60 days
from the entry of this judgment and decree. or the conclusion
of any appeal therefrom, of the following amounts to the
following defendants representing the value of permanent
improvements made by such defendants or their predecessors
in title to the above described lands as determined in the
prior orders filed on September 8, 1986 and October 28, 1986
and upon the “Joint Motion and Stipulation of the United
States and Defendants Wilson, Lakin, Jackson. Peterson and
RGP Inc. Regarding Improvements Issue” filed on July 25,
1986, and the “Stipulation of Facts of the Plaintiff United
States and the Defendants Wilson, Lakin. Jackson. Peterson,
RGP Inc. and Sorenson in Lieu of Trial on Valuation of
improvements” filed on April 27, 1987:
PO ID, ooo sic ccs ccasenccecs $1,453.720.50
Personal Representative
of the Estate of
Roy Tibbals Wilson, Deceased
ie” RoR RRR a tot ten As Reel $ 467,457.35
and that prejudgment interest shall be paid on said amounts
from June 5, 1975, the date when the United States was
placed in possession of the above described land by temporary
injunction until judgment is entered at the rates of interest
on judgments in effect from time to time during said period
under the laws of Nebraska. Post judgment interest shall be
paid pursuant to the United States Code.
2. Fee simple title shall be and is hereby quieted in the
State of lowa as against the United States and the Omaha
Indian Tribe in and to the following described land:
All that part of the East Half (E 2) of Section Ten
(10), all that part of the West Half (W ') of Section
Eleven (11), all that part of the West Half (W '4) of
Section Fourteen (14), all that part of the East Half
(E '2) of Section Fifteen (15), all that part of the
Northeast Quarter of the Northeast Quarter (NE ‘4
NE 14) of Section Twenty-Two (22), and all that part
of the North Half (N ') of Section Twenty-Three
(23), all in Township Twenty-Four (24) North,
23a
Range Ten (10) East of the Sixth (6th) Principal
Meridian, Monona County, Iowa, described as com-
mencing at the meander corner of Section Twenty-
Four (24), Township Eighty-Four (84) North, Range
Forty-Seven (47) West, and Section Nineteen (19),
Township Eighty-Four (84) North, Range Forty-Six
(46) West at the monument described in the official
record. thence South 49°57’00" West 2601.72 feet to
the monument described in the official record,
thence North 58°29’00” West 754.38 feet to the
monument described in the official record, thence
West 120.12 feet to the Point of Beginning to the
monument described in the official record, thence
South 02°!8’42” West 4.09 feet to the monument
described in the official record, thence South
15°16’40” West 191.41 feet, thence South 01°43’20”
East 174.60 feet, thence South 05°12’40” West
179.76 feet, thence South 13°40’40” East 52.72 feet,
thence South 07°01’40” East 112.46 feet, thence
South 02°48’00” West 257.10 feet, thence South
06°30’00” West 173.51 feet, thence South 01°20’00”
West 142.12 feet, thence South 14°35’00” West
163.76 feet, thence South 05°55’40” West 248.81
feet. thence South 14°16’40” West 242.40 feet,
thence South 14°06’40” West 294.83 feet, thence
South 20°59’40” West 125.24 feet, thence South
10°12’00” West 85.35 feet, thence South 19°56’00”
West 298.73 feet. thence South 36°32’20” West
205.20 feet to the monument described in the official
record, thence South 36°34’54” West 47.59 feet to
the monument described in the official record,
thence South 23°39’00” West 104.74 feet to the
monument described in the official record, thence
South 36°00’36” West 130.6! feet to the monument
described in the official record, thence South
21°39’54” West 137.68 feet to the monument de-
scribed in the official record, thence South 10°27'12”
official record. thence South 08°21’00” West 257.07
24a
feet to the monument described in the official record.
thence South 09°06’36” West 255.95 feet to the
monument described in the official record. thence
South 02°02’54” West 146.65 feet to the monument
described in the official record, thence South
03°56’42” East 153.25 feet to the monument de-
scribed in the official record, thence South U2°25’48”
East 234.70 feet to the monument described in the
official record, thence South 08°51’30” West 123.09
feet to the monument described in the official record.
thence South 04°56’48” West 182.42 feet to the
monument described in the official record. thence
South 14°23’06” East 194.77 feet to the monument
described in the official record, thence South
09°01°30” East 178.13 feet to the monument de-
scribed in the official record, thence South 01°12’30”
West 145.14 feet to the monument described 1n the
officia! record, thence South 20°49’00” East 159.95
feet. thence South | 7°02’30” East 377.48 feet. thence
South 04°38’30” East 155.96 feet. thence South
16°45’30” West 207.93 feet, thence South 46°10’30”
West 122.15 feet, thence South 60°42’30” West
135.69 feet, thence South 50°41°30” Wes: 21.16 feet,
thence South 52°33’00” East 406.25 feet, thence
South 71°58’30’ East 351.45 feet, thence South
61°37'30’ East 274.63 feet. thence South 67°20’00”
feet, thence South 24°19’30” East 271.25 feet, thence
South 10°36’36” East $46.48 feet. thence South
09°44’18” East 754.25 feet, thence South 41°51’54”
East 513.55 feet. thence South 57°41’42” East 466.88
feet, thence South 67°26’54” East 256.87 feet. thence
South 82°29’12” East 536.15 feet. thence North
82°19’30” East 178.20 feet, thence North 78°31’12”
East 22.90 feet, thence North 49°38’06” East 257.27
feet. thence North 62°22’30” East 151.14 feet, thence
North 81°39’12” East 141.17 feet, thence South
66°58’'12” East 332.38 feet, thence South 45°1 3’00”
East 29.96 feet, thence South 82°19'30” West
25a
2635.67 feet, thence Scuth 54°51’30” West 1111.44
feet. thence South 36°21'13” West 256.84 feet to the
1943 lowa-Nebraska State Compact Line, thence
following said Compact Line North 62°00’00” West
$00.00 feet, thence North 56°10’00” West 500.00
feet. thence North 48°20’00” West 500.00 feet,
thence North 41°36’00” West 500.00 feet, thence
North 34°00’00” West 500.00 feet, thence North
29°40’00” West 500.00 feet, thence North 23°56’00”
West 500.00 feet, thence North 18°40’00” West
500.00 feet, thence North 16°28’00” West 500.00
feet. thence North 14°30’00” West 500.00 feet,
thence North 11°36’00” West 550.00 feet, thence
North 09°20°00” West 500.00 feet, thence North
07°13’00” West 500.00 feet, thence North 04°41’00”
West 500.00 feet, thence North 00°20’00” West
500.00 feet. thence North 04°08’00” East 500.00
feet, thence North 08°! 2’00” East 500.00 feet, thence
North 12°14’00” East 500.00 feet, thence North
16°38’00” East 500.00 feet, thence North 22°41’00”
East 500.00 feet, thence North 26°01’00” East 499.87
feet. thence North 29°48’00” East 1,000.00 feet,
thence North 30°24’00” East 500.00 feet, thence
North 28°47’00” East 500.00 feet, thence North
26°43’00” East 500.00 feet, thence North 23°36’00”
East 500.00 feet, thence North 21°18’00” East 449.97
feet. thence leaving said Compact Line South
33°22’00” East 199.32 feet to the monument de-
scribed in the official record. thence South 29°51’00”
East 1775.40 feet to the monument described in the
official record, thence South 02°18’42” West 195.76
feet to the Point of Beginning containing 672.93
acres, more or less.
The United States and the Omaha Indian Tribe are
forever barred and estopped from having or claiming any
prior right, title or interest in said land adverse to the State
of lowa, its successors and assigns, and are enjoined from
interfering with the State of Iowa, its successors or assigns in
their ownership and peaceable possession of said land.
26a
3. Fee simple title shall be and is hereby quieted in John
R. Wilson, Personal Representative of the Estate of Ray
Tibbals Wilson, Deceased, as against the United States and
the Omaha Indian Tribe in and to the following described
land:
All that part of the East Half of the Northwest
Quarter (E %2 NW ‘4), that part of the Northeast
Quarter of the Southwest Quarter (NE % SW %),
and that part of the Southeast Quarter (SE '),
Section Fourteen (14), Township Twenty-Four (24)
North, Range Ten (10) East of the Sixth (6th) Princi-
pal Meridian, Monona County, Iowa, described as
commencing at the meander corner of Section Twen-
ty-Four (24), Township Eighty-Four (84) North.
Range Forty-Seven (47) West and Section Nineteen
(19), Township Eighty-Four (84) North, Range
Forty-Six (46) West at the monument described in
the official record, thence South 49°57’/00” West
2601.72 feet to the monument described in the
official record, thence South 2244.00 feet to the
monument described in the official record, thence
South 00°19’00” West 1041.35 feet to the Point of
Beginning, thence South 00°19’00” West 1598.65
feet to the monument described in the official record.
thence North 89°59’00” East 2624.16 feet to the
monument described in the official record, thence
South 00°01’00” East 1320.00 feet to the monument
described in the official record. thence South
89°59’00” West 1316.04 feet to the monument de-
scribed in the official record, thence South 00°09’00”
West 1320.00 feet to the monument described in the
official record, thence West 1034.87 feet. thence
North 06°38’50” West 1222.94 feet, thence North
27°44'10” West 1751.35 feet, thence North
08°08’20” West 1488.53 feet, thence South
89°59’30” East 906.06 feet to the Point of Beginning
containing 151.15 acres, more or less.
The United States and the Omaha Indian Tribe are forever
barred and estopped from having or claiming any prior right,
2/a
title or interest in said land adverse to John R. Wilson,
Personal Representative of the Estate of Roy Tibbals Wilson,
Deceased, his heirs, successors and assigns and are enjoined
from interfering with John R. Wilson, Personal Representa-
tive of the Estate of Roy Tibbals Wilson, Deceased, his
heirs, successors or assigns in their ownership and peaceable
possession of said land.
4. Fee simple title shall be and 1s hereby quieted in RGP
Inc. as against the United States and the Omaha Indian Tribe
in and to the following described land:
All that part of East Half of the Southwest Quarter
(E '2 SW s) of Section Eleven (11), and all that part
of the Northeast Quarter of the Northwest Quarter
(NE % NW 4) of Section Fourteen (14), all in
Township Twenty-Four (24) North, Range Ten (10)
East of the Sixth (6th) Principal Meridian, Monona
County, Iowa, described as commencing at the me-
ander corner of Section Twenty-Four (24), Township
Eighty-Four (84) North, Range Forty-Seven (47)
West and Section Nineteen (19), Township Eighty-
Four (84) North, Range Forty-Six (46) West at the
monument described in the official record, thence
South 49°57’00” West 2601.72 feet to the Point of
Beginning to the monument described in the official
record, thence South 2244.00 feet to the monument
described in the official record, thence South
00°19’00” West 1041.35 feet, thence North
89°59’30” West !320.00 feet, thence North
00°19’00” East 829.58 feet to the monument de-
scribed in the official record, thence North 36°32’20”
East 205.20 feet, thence North 19°56’00” East 298.73
feet, thence North 10°12’00” East 85.35 feet, thence
North 20°59’40” East 125.24 feet, thence North
14°06’40” East 294.83 feet, thence North 14°16’40”
East 242.40 feet, thence North 05°55’40” East 248.81
feet, thence North 14°35’00” East 163.76 feet, thence
North 01°20’00” East 142.12 feet, thence North
06°30’00” East 173.51 feet, thence North 02°48’00”
East 257.0 feet, thence North 07°01’40” West 112.46
28a
feet, thence North 1 3°40’40” West 52.72 feet, thence
North 05°12’40” East 179.76 feet, thence North
01°43’20” West 174.60 feet, thence North 15°16’40”
East 191.41 feet. thence North 02°18’42” East 4.09
feet to the monument described in the official record,
thence East 120.12 feet to the monument described
in the official record, thence South 58°29’00” East
754.38 feet to the Point of Beginning containing
83.26 acres, more or less.
The United States and the Omaha Indian Tribe are forever
barred and estopped from having or claiming any prior right,
title or interest in said land adverse to RGP Inc., its successors
and assigns and are enjoined from interfering with RGP Inc..
its successors and assigns in their ownership and peaceable
possession of said land.
5. Fee simple title shall be and is hereby quieted in
Charles E. Lakin and Florence Lakin as against the United
States and the Omaha Indian Tribe in and to the following
described land:
All that part of the East Half of the Northwest
Quarter (E 1/2 NW 1/4), that part of the Southwest
Quarter (SW 1/4), and that part of the West Half
of the Southeast Quarter (W 1/2 SE 1/4), Section
Fourteen (14), Township Twenty-Four (24) North,
Range Ten (10) East of the Sixth (6th) Principal
Meridian, Monona County, lowa, described as com-
mencing at the meander corner of Section Twenty-
Four (24), Township eighty-Four (84) North, Range
Forty-Seven (47) West and Section Nineteen (19),
Township Eighty-Four (84) North, Range Forty-Six
(46) West at the monument described in the official
record, thence South 49°57’00” West 2601.72 feet
to the monument described in the official record,
thence South 2244.00 feet to the monument de-
scribed in the official record, thence South 00°19’00”
West 1041.35 feet, thence North 89°59’30” West
906.06 feet to the Point of Beginning, thence South
08°08’20” East 1488.53 feet, thence South 27°44’10”
29a
East 1751.35 feet, thence South 06°38’50” East
1222.94 feet, thence West 303.51 feet to the monu-
ment described in the official record, thence North
10°36’36” West 542.00 feet to the monument de-
scribed in the official record, thence North 24°19’30”
West 271.25 feet, thence North 41°30’30” West
feet. thence North 61°37’30” West 274.63 feet,
thence North 71°58’30” West 351.45 feet, thence
North 52°33’00” West 406.25 feet to the monument
described in the official record, thence North
50°41’30” East 21.16 feet, thence North 60°42’30’
East 135.69 feet, thence North 46°10’30” East 122.15
feet. thence North 16°45’30” East 207.93 feet, thence
North 04°38’40” West 155.96 feet, thence North
17°02’30” West 377.48 feet, thence North 20°49’00”
West 159.95 feet, thence North 01°12’30” East 15.05
feet to the monument described in the official record,
thence North 89°59’00” East 249.35 feet to the
monument described in the official record, thence
North 00°19’00” East 1599.22 feet, thence South
89°59’30” East 413.94 feet to the Point of Beginning
containing 71.34 acres more or less.
The United States and the Omaha Indian Tribe are forever
barred and enjoined from having or claiming any prior right,
title or interest in said land adverse to Charles E. Lakin and
Florence Lakin, their heirs, successors and assigns and are
enjoined from interfering with Charles E. Lakin and Florence
Lakin. their heirs, successors and assigns in their ownership
and peaceable possession of said land.
6. The preliminary injunction, filed June 5, 1975, which
gave temporary possession of the lands within the Barrett
Survey to the Omaha Indian Tribe is hereby dissolved, va-
cated and set aside.
7. The trespass claims of the Omaha Indian Tribe in
that portion of C 75-4067 which has been consolidated with
C 75-4024 and C 75-4026 are dismissed with prejudice
pursuant to the court’s order of December |, 1986.
DN —————————
oo RINE! ete
30a
8. The registry fund held tn escrow accounts by the Cierk
of Court pursuant to the June 5, 1975 preliminary injunction,
shall remain subject to the jurisdiction of the court pending
audit by the Inspector General of the Department of the
Interior in accordance with the court’s order filed May 28,
1987, and any distribution of such funds shall be subject to
the further order of the court.
The amount of net profits derived from the lands which
are quieted in the United States as Trustee for the Omaha
indian Tribe and held by the Clerk of Court pursuant to the
June 5, 1975 preliminary injunction shall be available to the
United States to partially satisfy its obligation to pay for
improvements.
9. The State of Iowa shall be entitled to recover its costs
herein and the same are taxed against the United States and
the Omaha Indian Tribe. The United States and the Omaha
Indian Tribe shall pay their own costs and defendants Wilson,
Lakin, Jackson, RGP Inc., Peterson and Sorenson shall pay
their own costs.
10. Tothe extent that there remain certain claims among
the parties in the unconsolidated portion of C 75-4067 which
have not been adjudicated herein, the court certifies, pursuant
to Rule 54(b) FRCP that there is no just reason for delay and
that this final judgment and decree shall constitute a final
judgment which is approved as to form as to the claims of
the parties adjudicated herein and direction is therefore made
for the entry of judgment in accordance therewith.
May 29, 1987.
EDWARD J. MCMANUS
Edward J. McManus, Judge
UNITED STATES DISTRICT
COURT
3la
IN THE
United States Bistrict Court
For THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
UNITED STATES OF AMERICA, |
Plaintiff,
vs. . C 75-4024
JOHN R. WILSON, et al,
Defendants.
OMAHA INDIAN TRIBE, @IC., ) -_
Plaintiff, oven
ORDER
VS. >
(filed
HAROLD JACKSON, et al.
ron 2 =
Defendants. June 30, 1987)
OMAHA INDIAN [RIBE,
Plaintiff, :
5 4. : =
’ \ C 75-4067
AGRICULTURAL INDUSTRIAL
INVESTMENT Co., ef al., |
Defendants.
This matter is before the court on defendant RGP, Inc.'s
unresisted application for allowance of costs and attorney
fees. filed June 4, 1987: on the Omaha Indian Tribe’s resisted
motion for new trial, filed June 10, 1987; on the United
States’ report on proposed audit, filed June 12, 1987; and
pursuant to the court’s May |, 1987 order that parties submit
briefs and arguments on the issue of sanctions. Sanction
granted; motion for new trial denied; and judgment amended.
Sanctions
On January 9, 1986. the Tribe filed a motion for summary
judgment against three attorneys for the United States. In
its February 21, 1986 order, the court found that the attorneys
were not parties to this lawsuit and denied the motion as
32a
frivolous. Sanctions were imposed on the Tribe’s attorney,
William H. Veeder, pursuant to FRCP 11, 28 USC § 1927
and Local Rule 2.2.8. Determination of the appropriate
sanction was stayed until the final pre-trial conference. No
final pre-trial conference was necessary and the parties have
been given the opportunity to file supplemental briefs and
arguments pursuant to the court’s oral order of May 1, 1987.
Expenses were incurred by the following parties: Jowa—
$325.00: RGP, Inc. and Otis Peterson-—$360.00, Wilson.
Lakin & Jackson—$749.70. and the United States—
$1,875.00. The Tribe’s attorney has not contested these
amounts; therefore, they will be granted as sanctions.
On September 16 and 17. 1986, lowa and the private
defendants sought sanctions and to compel discovery for
the Tribe’s failure to answer interrogatories and produce
documents. The court granted the motion to compel and
ordered the Tribe and its attorney to pay reasonable expenses
caused by the Tribe’s failure to respond to the discovery
request. Jackson, Lakin and Wilson reasonably incurred
expenses of $251.00 and lowa reasonably incurred expenses
of $212.50. Neither the Tribe nor its attorney have contested
these amounts; therefore. they will be granted as sanctions.
On February 2 and 20, Iowa sought an order to show
Cause why the Tribe and Doran Morris should not be held in
contempt. After notice and hearing, the court held the Tribe
and Morris in contempt and ordered the Tribe to pay lowa
its reasonable costs and attorney fees incurred in bringing the
contempt action. lIowa reasonably incurred expenses of
$14,807.71 in bringing the contempt action and the Tribe
has not contested such expenses. Accordingly the expenses
are granted.
On April 21 and 23, 1987, lowa and the private defen-
dants sought an order to show cause why the Tribe and some
of its members and employees should not be held in contempt.
After notice and hearing, the court held the Tribe and eleven
of its members in contempt, incarcerated the tribal members
and imposed a daily fine of $10,000.00 on the Tribe. On
May 22, 1987, the court ordered the Tribe to pay defendants
33a
all reasonable costs and attorney fees incurred in bringing the
contempt action. lowa reasonably incurred expenses of
$6,558.37; defendants Wilson, Lakin and Jackson reasonably
incurred expenses of $6,556.33; and defendant RGP, Inc.
reasonably incurred expenses of $2,598.34. The Tribe has
not contested such expenses, accordingly, the expenses are
granted.
Motion for New Trial
The Omaha Indian Tribe moves for a new trial based
upon the court’s refusal to hear the Tribe’s fraud charges or
alternatively to amend judgment, correct patent errors and
to make part of the record the amicus curiae statement of the
National Council of Churches and Center for Constitutional
Rights. ' ;
The court has refused the Tribe’s prior requests for a
hearing on its charges of fraud. The Tribe has not provided
the court with any new information which would justify a
new trial pursuant to Rule 59.
The Tribe seeks to amend the judgment to quiet title in
the Tribe to the lands claimed by “defendant Harold M.
Sorenson et ux, et al.” Harold Sorenson, Harold M. Sorenson.
Luea Sorenson and Darrell L. Sorenson (Sorensons) are defen-
dants in the portion of No. C 75-4067 which was consolidated
with Nos. C 75-4024 and C 75-4026. The consolidated case
(Wilson) includes all land within the Barrett Survey area;
accordingly, the claims of the Sorensons to land within the
Barrett Survey have been adjudicated and resolved. The
Sorensons had no land quieted in them. The land quieted in
the United States as trustee for the Omaha Indian Tribe was
quieted against the Sorensons, as well as against the other
defendants. The land cannot be quieted in the Tribe itself
since the land is held by the United States as trustee for the
Tribe.
The Tribe also asserts that the court improperly quieted
title in the State of Iowa. Title was quieted in the State of
‘The amicus curiae statements, attached to the Tribe’s motion as
Appendices A and B are now part of the record.
CO
34a
lowa to the lands claimed by lowa because the Tribe and the
United States failed to meet their burden of proof establishing
superior title against lowa. The Tribe’s claim that adequate
findings of fact and conclusions of law were not made is also
without merit.
The Tribe next challenges the court’s decision to make
the net profits derived from the lands which are quieted in
the United States as Trustee for the Omaha Indian Tribe and
held by the Clerk of Court, pursuant to the June 5, 1975
preliminary injunction, available to the United States to
partially satisfy its obligation to pay for improvements. The
United States argues that the Tribe has waived any objection
because it failed to object to the proposed judgment or the
Unites States’ request. In addition the government argues
that it is entitled to reimbursement from the trust for its
expenditures as trustee for the purpose of the trust.
The court’s preliminary injunction, filed June 5. 1975,
ordered the Tribe to deposit with the Clerk of Court the net
profits received for crops harvested from the Barrett Survey
lands, together with a report of receipts and disbursements.
This order served to protect the defendants from the possibil-
ity of financial injury until quiet title could be finally
determined.
Although the United States holds the land as trustee for
the benefit of the Tribe, the Tribe has the right of use and
occupancy to the tribal lands. Omaha Indian Tribe v. Wilson.
575 F.2d 620, 622 n.2 (8th Cir. 1978). The court allowed
the United States to offsets rents and profits and removed
timber against the value of improvements. However, the
Offset is limited to rents and profits and removed timber prior
to June 5, 1975, the valuation date for improvements. The
government's argument, carried to its logical conclusion
would force the Tribe to pay all subsequent net profits to the
government until it is reimbursed for the entire value of the
improvements. It cannot prevail. On June 5. 1975, the Tribe
was given possession of the Barrett Survey area. All net
profits received since that date from leasing the land which
has been quieted in the United States as trustee for the benefit
35a
of the Tribe, rightfully belong to the Tribe. The Tribe will
not be penalized for the government’s failure for approxi-
mately 50 years to promptly seek quiet title to the trust lands.
This result is an equitable balance between the Tribe's right
to rents from the trust lands and the government's duty to
pay for improvements made prior to June 5, 1975. Accord-
ingly the court will amend its judgment with respect to the
court registry fund.
The Tribe also objects to the court ordered audit being
conducted by the Inspector General of the Department of the
Interior. The court cannot order payment of amounts in the
Clerk’s registry fund until it determines, first, that all net
profits have been deposited, and second, the amounts which
will compensate defendants for the loss of the use of their
land since June 5, 1975. The Inspector General’s proposed
audit will adequately determine the first aspect. However,
no proposal has been made to determine the amount which
will compensate defendants. The Tribe and the private
defendants shall confer and submit a proposed method (or
methods) of dividing the fund.
It is therefore
ORDERED
1. The Tribe’s attorney, William H. Veeder, shall pay
the following amounts to the listed parties:
DIG os cciccasecececcaceeesnsnniensesanatensoes $ 325.00
RGP, Inc. and Otis Peterson..... $ 360.00
Wilson, Lakin and Jackson ...... $ 749.70
United States .................cceeeeeeees $1,875.00
2. The Tribe and its attorney, William H. Veeder, shall
pay the following amounts to the listed parties:
TOW .....ccccccccecccececceccescnccsececceeees $212.50
Wilson, Lakin and Jackson ...... $251.00
aaa ae ee ee rere
36a
3. The Tribe shall pay the follow
Ing amounts to the
listed parties:
$
Wilson, Lakin and Jackson ..... $
RGP, Inc. $
4. Motion for new trial] denied.
<
>. The court’s judgment. filed May 29, 1987, shall be
amended by deleting the second Paragraph of num
ber 8 on
pages 13 and 14.
6. By not later than July 20, 1987, the Tribe and the
Private defendants shall confer and file a proposed method
(or methods) of dividing the court registry fund.
June 30. 1987.
___ E>warpb J. MCMaNnus
Edward J. McManus. Judge
UNITED STATES DISTRICT
COURT
APPENDIX C
OMAHA INDIAN TRIBE, Treaty of 1854 with the United
States of America (10 Stat. 1043). Organized pursuant to
the Act of June 18, 1934 (48 Stat. 984; 23 U.S.C. 476) as
amended, Appellant,
¥,
Harold JACKSON and Otis Peterson and the District
Court of lowa in and for Monona County, Appellees.
OMAHA INDIAN TRIBE, Treaty of 1854 with the United
States of America (10 Stat. 1043), Organized pursuant to
the Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 476) as
amended, Appellants.
Va
AGRICULTURAL INDUSTRIAL INVESTMENT COM-
PANY; Roy Tibbals Wilson Estate; Charles E. Lakin: Flore-
nce Lakin; R.G.P. Incorporated, an lowa Corporation;
iarold Jackson; Otis Peterson; Travelers Insurance Com-
pany; Darrell L. Harold; and Luea Sorenson; State of lowa
and State Conservation Commission of the State of lowa,
Appellees,
UNITED STATES of America,
Appellant,
vi
John R. WILSON, Charles G. Lakin, Florence Lakin,
R.G.P. Incorporated, an Jowa Corporation, Harold Jack-
son, Otis Peterson, Travelers Insurance Company and the
State of lowa, Appellees.
Nos. 87-2042, 87-2191.
United States Court of Appeals,
Eighth Circuit
Submitted April 14, 1988.
Decided Aug. 12, 1988.
cmon acaampanaaaraaiaatialina oe enie aie
38a
William H. Veeder and Laura Frossard. Washington,
D.C., for appellant.
John P. Sarcone, Asst. Atty. Gen., Des Moines, lowa and
Donald J. Buresh, Omaha, Neb., for appellees.
Before LAY. Chief Judge, FAGG, Circuit Judge, and
DOTY ,*District Judge.
LAY,Chief Judge.
This appeal involves the question of ownership in ap-
proximately 700 acres of land' formerly within the boundary
of the Omaha Indian Reservation. Title to the total acreage
1s Claimed by the Omaha Indian Tribe and is disputed in part
by the State of Iowa and in part by individual non-Indian
defendants. The overall area involved consists of approxi-
mately 2900 acres of land contiguous to the Missouri River
on the interstate boundary between Nebraska and Iowa within
an area known as the Barrett Survey. This litigation has a
long history which need not be repeated here.”
This particular appeal arises from the remand by this
court to the district court in United States v. Wilson, 707
F.2d 304 (8th Cir. 1982), cert. denied. 465 U.S. 1025. 104
S.Ct. 1281, 79 L.Ed2d 684 (1984) (herein after referred to as
Omaha IIT). On remand, the district court found that the
Tribe failed to carry its burden of proof that the past move-
ments of the Missouri River between 1879 and 1923 were
due to avulsion and therefore failed to establish title as to the
* THE HONORABLE DAVIDS. DOTY, United States District Judge
for the District of Minnesota, sitting by designation.
The specific tracts of land and the acreage involved are set forth in
the district court decree of May 29, 1987
“The extensive and detailed facts are more fully set forth in the
previous opinions in this on-going dispute. See United States v. Wilson.
578 F.Supp. 1191 (N.D.lowa !984); United States v. Wilson, 707 F.2d 304
(8th Cir.1982), cert. denied, 465 U.S.1025, 104 S.Ct. 1281, 79 LEd.2d 684
(1984), United States v. Wilson, 523 F.Supp. 874 (N.D. lowa 1981): Omaha
Indian Tribe v. Wilson, 614 F.2d 1153 (8th Cir.). cert. denied, 449 US.
825, 101 S.Ct. 87, 66 L.Ed 28 (1980); Wilson v. Omaha Indian Tribe. 442
U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 1§3 (1979): Omaha Indian Tribe vy.
Wilson, 375 F.2d 620 (8th Cir.1978), vacated and remanded. 442 U.S. 653.
99 S.Ct. 2529. 61 L.Ed.2d 153 (1979): and United States v. Wilson. 433
F.Supp. 57 (N.D. lowa 1977).
39a
land claimed by the State and fee patented to the private
landowners. The district court therefore entered judgment
quieting title in the land claimed by the State of lowa and
the land claimed by the fee patented private landowners. In
doing so, the district court denied ownership to the Tribe as
to any of these lands. See United States v. Wilson, 578
F.Supp. 1191 (N.D. lowa 1984).
The district court also entered judgment against the
United States in the amount of $1,921,177.85 for the net
value of the improvements that the private defendant land-
owners and their predecessors had made to the land.’ This
was in accord with our prior decision in Omaha II] in which
we held that the doctrine of sovereign immunity did not bar
the private landowners’ suit against the government for the
value of the improvements. 707 F.2d at 312. In so holding ,
we ruled that sovereign immunity was inapplicable “[b]ecause
the duty to pay for the value of the improvements is an
element of the government’s own claim eee ~ "Id. The district
court likewise awarded prejudgment interest accruing from
July 5, 1975, the day the government was placed in possession
of the disputed area as trustee for the Tribe. The district
court also ruled that the court registry fund which had been
accumulated by the Tribe since 1975 from the net profits
realized from the land could not be used by the government
to satisfy its obligation to pay for the improvements.
The Tribe appeals the district court’s findings as they
relate to the fee patented land quieted in the private landown-
ers and the land awarded to the State of lowa. In doing so,
the Tribe maintains that the district court failed to make
sufficient findings as required by Fed.R.Civ.P. 52(a). The
government appeals the award of prejudgment interest and
also seeks to reverse the district court judgment that the court
registry fund cannot be used to pay for the value of the
improvements made upon the land. Finally, the private
defendants claiming non-fee patented reservation land held
in trust by the government maintain that 25 USC. 4 194
>The parties stipulated that the net value of the improvements was
$1,921,177.85.
40a
violates the due process clause of the fifth amendment. We
affirm in part and reverse in part.”
1. Discussion
A. Tribe's Appeal!
1. Omaha III, Mandate
In Omaha III, this court held that the Tribe had the
burden of proof as to the land claimed by the State of Iowa
and the fee patented owners. In doing so, we stated that
Both the State of Iowa and the individual owners
contend that the Tribe, to meet its burden of proof
regarding the tracts of land now in controversy, must
prove that the river moved westward over the eastern
*In this appeal, the Tribe also maintains (1) that the Department of
Justice attorneys engaged in fraud and collusion in their representation of
the United States as trustee for the Tribe, and (2) that 25 U.S.C § 194
applies to the fee patented private defendant landowners. We find these
claims to be without merit.
The Tribe first raised the charges that the Department of Justice
attorneys engaged in fraud in 1976. However, the Tribe failed to again
raise the issue until 1985 even though the case had been reviewed once by
the Supreme Court and three times by this court. At that time, the district
court held that the Tribe’s motion to disqualify the government attorneys
was “clearly untimely and merits no serious attention or consideration”.
The Tribe subsequently petitioned this court for a writ of mandamus
alleging the same charges. This court not only dismissed the Tribe's
petition as “frivolous and totally without merit” but also awarded the
United States costs and attorney’s fees as sanctions against counsel for the
Tribe for filing “a totally frivolous pleading.” Jn Re: Omaha Indian Tribe,
No. 86-1717 (8th Cir. July 18, 1986) (order denying petition for writ of
mandamus.) In view of the foregoing, this court unequivocally determined
prior to oral argument that it would not entertain this meritless issue.
We also reject the Tribe’s challenge to our decision in Omaha III
interpreting 25 U.S.C. § 194 to require the Tribe to prove the avulsion
necessary to establish its title to the eastern portion of the Barrett Survey
as a first step in claiming the fee patented land. This court’s Omaha III
decision with respect to this issue is the law of the case, and the Tribe has
provided no basis which either compels or justifies our reconsideration.
see Handi Inv. Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981)
(“prior decisions of legal issues should be followed unless there is substan-
tially different evidence at a subsequeni trial or new controlling authority,
or the prior decision was clearly erroneous and would result in injury.”)
(citations omitted).
4la
Barrett Survey land between 1867 and 1923 by avulsion;
In other words, they argue the Tribe must establish
affirmatively how the river moved during the entire
period of time relevant to this lawsuit. As indicated we
agree.
Omaha ITI, 707 F.2d at 310. In remandate to the district
court, we specifically stated
We therefore remand this case to allow the district
court to determine whether the Tribe has met its burden
of proof defined herein. If it holds that the Tribe failed
to meet its burden, it must then determine whether the
private defendants and the State of Iowa are entitled to
have title to the tracts of land in controversy quieted in
them.
Id. (footnote omitted).
We believe that the district court promptly implemented
this directive and correctly interpreted the Tribe’s burden.
On demand, the district court stated:
Basically the Court of Appeals ordered the Tribe to
return to the beginning. The Tribe must prove on the
merits its entitlement to the eastern Barrett Survey land
before this Court’s holding that the western lands were
accretions would have any legal significance. This, of
course, demands that the Tribe show them from 1879 to
1923 the original boundary of the reservation remained
unchanged because all river movements in that time
period were avulsive.
578 F.Supp. at 1195 (footnotes omitted).
On remand, the district court required the parties to
submit post appeal findings of fact and conclusions of law.
Based upon its subsequent evaluation, the district court stated
that it would not alter its view of the evidence which had
been exhaustively reviewed in prior decisions and concluded
that the Tribe could not sustain its burden of proving the
necessary avulsions. Jd. at 1193. In view of our prior holdings
that it was equivocal whether all relevant movements of the
Missouri River were through accretion only, 575 F.2d at 648;
42a
614 F.2d at 1160-61; and our belief that because of the
passage of time involved, the party having the burden of
proof inevitably may face insuperable barriers, 707 F.2d at
311, we conclude that the district court’s findings are not
clearly erroneous. See Anderson v. City of Bessemer City, 470
U.S. 564, 573-76, 106 S. Ct. 1504. 1511-12, 84 L.Ed.2d 518
(1985).
On remand, the district court also determined, as re-
quired by this court, that the State of lowa and private
defendants were entitled to have title quieted in them to the
state and fee patented lands respectively. 578 F.Supp. at
1196. Both the private landowners and the State produced
record titles. In doing so, the district court therefore con-
cluded that the State and private defendants had presented
sufficient evidence to obtain quiet title decrees against the
Tribe. Jd. We determine that this holding is also not clearly
erroneous. Based upon the foregoing, we therefore conclude
that the district court complied with the mandate of Omaha
III] by reviewing the record in light of the burden of proof
placed upon the Tribe, and affirm the district court’s finding
that the Tribe did not sustain its burden of proving that the
Missouri River’s movements were avulsive with respect to
the non-trust lands within the Barrett Survey area.
2. Fed.R.Civ.P. 52(a)
We also reject the Tribe's claim that the district court
failed to make sufficient findings as required by Fed.R.Civ.P.
52(a). Although rule 52(a) provides in relevant part that “[iJn
all actions tried upon the facts without a jury***, the
court shall find the facts specially and state separately its
conclusions of law thereon * * *”, this court has previously
stated that “findings of a district court ‘are adequate if they
afford a reviewing court a clear understanding of the basis of
the trial court’s decision.”” Lynch Corp. v. MII Liquidating
Co., 717 F.2d 1184, 1187 (8th Cir.1983) (citation omitted):
see also Christensen v. Great Plains Gas Co., 418 F.2d 995,
1000 (8th Cir.1969) (“findings of fact should be with such
specificity [so] as to afford a reviewing court a clear under-
standing of the ground for the trial court’s decision * * *.”)
43a
(citations omitted); Falcon Equipment Corp. yv. Courtesy
Lincoln Mercury, 536 F.2d 806, 808 (8th Cir.1976); United
States v. F.D. Rich, 439 F.2d 895, 899 (8th Cir.1971).
The adequacy of the district court’s findings in the instant
case must be viewed against the extensive prior scrutiny of
the evidence in this case not only by the district court on two
occasions, but also by this court on three separate occasions
and by the United States Supreme Court. This was the third
time the district court had considered the evidence and rather
than recatalogue the evidence a third time, the court referred
to the prior decisions in this case for a full statement of the
extensive evidence.
The Tribe faults the district court’s findings on the basis
that the district court reasserts that the relevant movement
of the Missouri River was through accretion rather than
avulsion. The Tribe argues that this court in Omaha Indian
Tribe v. Wilson, 575 F.2d 620 (8th Cir.15 J) (hereinafter
referred to as Omaha I), held that these findings were specula-
tive and not supported by substantial evidence. To the extent
that the Tribe recites the historical record, its appraisal of
the record is an accurate one. Although the district court in
the remand of the present case states that it will not alter its
view of the evidence, 578 F.Supp. at 1193, the district court
nevertheless acknowledges that: “the Court of Appeals has
foreclosed that view becoming the foundation of a decision.
As a result of this Court’s view and the Court of Appeals
mandates, no party can meet its burden of proving accretion
or avulsion.” /d. It is clear from the district court’s opinion
that the court in review of the overall evidence found that
the Tribe failed to sustain its burden of proving that the
Missouri River’s movements were avulsive. Our analysis of
the record is such that we must agree. In doing so, we again
reject the district court’s earlier findings relating to the trust
lands and reaffirm our earlier judgment that those findings
are based soley upon speculative and equivocal evidence. We
agree, however, with the district court that the historical
evidence demonstrates the same speculative foundation to
sustain the Tribe’s assertion that the river’s movements were
avulsive. We therefore conclude that the district court find-
44a
ings are sufficient for purposes of rule,52(a), are not clearly
erroneous, and must be sustained.°
B. Government's Appeal
In its cross-appeal, the government maintains that the
district court erred both in determining that the government
could not use the escrowed profits realized by the non-Indian
lessees of the Barrett Survey land to satisfy its obligation of
paying for the improvements on the land, and, in awarding
prejudgment interest on the value of the improvements.
1. Court Registry Fund
It is fundamental law that a trustee is entitled to reim-
bursement from the trust estate for expenses incurred which
are beneficial to the trust beneficiary and not solely the trustee
*In this appeal, the Tribe also maintains that the district court erred
In not quieting title in favor of the Tribe as to the entire 6390 acres
comprising Blackbird Bend, and, that it 1s not bound by the district court
judgment quieting title to land within the Barrett Survey. Because this
court’s Omaha III mandate directed the district court to act only as to the
State and fee patented lands within the Barrett Survey, we reject the Tribe’s
claims.
The Tribe’s arguments patently ignore the fact that the scope of this
litigation was clearly defined at its initial statges over 12 years ago. In
1976, the district court granted the Tribe's motion to consolidate for trial
Its OWN action In ejectment seeking land outside the Barrett Survey area
and the government's equitable quiet title proceeding concerning the 2906
acres of land within the Barrett Survey area as trustee for the Tribe. The
district court, moreover, subsequently severed the Tribe's claim to lands
outside the Barrett Survey. The Tribe did not object to the district
court’s severance order either by motion for reconsideration, request for
interlocutory relief, or in any of the subsequent appeals. Rather, the Tribe
proceeded to trial in this quiet title action involving only the 2900 acres
of land within the Barrett Survey. This has clearly been the subject matter
throughout this entire litigation. Both the district court and this court
have repeatedly recognized this fact. See 433 F.Supp. at 67-69, 74-75 575
F.2d at 622, 623 n. 4, 651 n. 69; 523 F.Supp. at 902-03; 707 F.2d at 306-
07, 310; 578 F.Supp. at 1192. Thus, the only matter properly before this
court 1s whether the district court complied with this court’s Omaha I/]
mandate directing the district court to act only as to the State and fee
patented lands within the Barrett Survey. See Adamain v. Lombardi, 608
F.2d 1224, 1228 (9th Cir.1979) (scope of review is limited to what the
remamd order required); Thornton v. Carter, 109 F.2d 316, 320 (8th Cir.
1940) (“After case has been brought to this court and decided and a
mandate has been issued to the court below, a second appeal brings up
nothing for revision but the proceedings subsequent to the mandate * * *.”).
45a
unless the expenses were incurred because of the personal
fault or error of the trustee. See G.G. Boger and G.T. Bogert.
The Law of Trusts and Trustee §§ 801, 809 (2nd Ed. 1981);
see also, duPont v. S. Nat'l Bank of Houston, Tex, 77) F.2d
874 (Sth Cir. 1985); Morrissey v. Segal, 526 F.2d 121 (2nd
Cir.1975) Warrick v. Comm'r of Internal Revenue 173 F.2d
905 (8th Cir. 1949). In the instant case, the government
is obligated by the judgment quieting title to pay for the
substantial improvements on the land which under the judg-
ment, plainly accrue to the benefit of the beneficiary of
the trust-the Omaha Indian Tribe. Because the judgement
quieting title to the land in the United States in trust for the
Tribe clearly-benefits the Tribe, we therefore conclude that
the liability imposed upon the government to reimburse the
private landowners for the improvements as a condition
precedent of the quiet title decree should be satished out of
escrowed trust funds in the court registry fund.
In determining that the government can use the escrowed
profits to satisfy its obligation of paying for the improvements
on the land, we reject the district court’s conclusion that the
government was at fault for failing to seek quiet ttle to the
trust lands for approximately fifty years. As indicated by the
United States, there has been no showing that the government
deliberately avoided instituting the quiet title action or was
otherwise in bad faith, or that the Omaha Indian Tribe
suffered in any way as a result of any alleged delay. Rather.
the Tribe has obtained the substantial benefit of having the
land within the Barrett Survey cleared, drained, and otherwise
improved through the efforts of the non-Indian defendants.
2. Prejudgment Interest
As indicated, the government also argues in its cross-
appeal that the district court erred in awarding preyudgment
interest on the value of the improvements. In doing so, the
government relies upon 28 U.S.C. § 2516(a) (1982) which
provides that “[i]nterest on a claim against the United States
shall be allowed in a judgment of the United States Claims
Court only under a contract or Act of Congress expressly
providing for payment thereof.” See also United States y.
46a
Sioux Nation of Indians, 448 U.S. 371,887 n. 17, 100 S.Ct.
2716, 2727 n. 17, 65 L.Ed.2d 844 (1980). The government
claims that because there is no contractual or congressionally
expressed statutory provision, it is not liable for preyudgment
Interest in the instant case. We disagree. In doing so,
although we acknowledge that section 2516(a) codifies the
traditional rule that the government does not pay prejudg-
ment interest. we conclude that the traditional rule does not
apply under the circumstances of this case.
The traditional rule codified in section 2516(a) issues
from and is another attribute enjoyed by the United States
under its sovereign immunity. However, as we recognized
in Omaha IIT, the government’s obligation to pay for the
improvements made upon the land 1s not based upon the
defendants’ counterclaims, but rather, is an element of the
government’s own claim. 707 F.2d at 3i2. The equitable
nature of the improvements claim, moreover, is distinctive
from the types of claims in which section 2516(a) traditionally
applies. As we earlier noted, the government seeks the
intervention of equity to quiet title, and must dco equity to
obtain such equitable relief. Jd. We therefore conclude
that the principles of equity apply and the traditional rule
embodied in section 2516(a) does not apply to the govern-
ment’s claim that it 1s not liable for prejudgment interest.
We believe, moreover, that the government’s argument
is both inconsistent and irreconcilable with the conclusion
we reached in Omaha II] that the government was not
protected by sovereign immunity from reimbursing the defen-
dants for the improvements they made upon the land. It
would be incongruous to hold, as we did in Omaha III, that
the government is not shielded by the doctrine of sovereign
immunity from its obligation to pay the defendants for the
improvements, and now conclude that the government is
shielded by sovereign immunity from paying prejudgment
interest on the net value of those same improvements. The
defendants are entitled not only to the net value of the
improvements they and their predecessors made to the land,
but the full equivalent value of the improvements. This will
be obtained only if the defendants are reimbursed for the net
47a
value of the improvements together with interest from June
5, 1975, the date when the United States and the Omaha
Indian Tribe were placed in possession. We therefore con-
clude that the district court acted within its traditional equity
powers, see Weinberger v. Romero-Barcelo, 456 U.S. 305,
313-14, 102 S.Ct. 1798, 1803-04, 72 L.Ed2d 9! (i982),
and in a manner entirely consistent with Omaha III in
determining that preyudgment interest should be awarded.
C. Private Defendants’ Appeal
Finally, the private defendants claiming non-fee patented
reservation land held in trust by the government maintain
that 25 U.S.C. § 194 effects an invidious discrimination on
the basis of race contrary to the due process clause of the fifth
amendment. We cannot agree. This court’s decision in
Omaha I with respect to this issue is the law of the case, and
the private defendants have provided no basis which either
compels or justifies this court’s reconsideration. See 575 F.2d
at 631 n. 18; see also Handi Inv. Co. v. Mobil Oil Corp., 653
F.2d 391, 392 (9th Cir.1981) (citing Kimball v. Callahan, 590
F.2d 768, 772 (9th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct.
49, 62 L.Ed.2d 33 (1979); White v. Murtha, 377 F.2d 428
(Sth Cir. 1967).
48a
Il. Conclusion
The judgment of the district court denying the govern-
ment’s claim that it be allowed to use the court registry
fund to satisfy its obligation to pay for the value of the
improvements made upon the land 1s reversed. The remain-
der of the district court’s judgment is affirmed.°®
° Our judgment in this appeal has no bearing whatsoever on the Tribe's
claim to any land outside the boundary of the onginal reservation which
is defined by the Barrett Survey. The judgment in the instant case neither
prevents the Omaha Indian Tribe from prosecuting nor disposes of the
Tribe’s pending action to recover accretions to tribal lands against those
defendants who now occupy land within the Blackbird Bend area but
outside the boundary of the Barrett Survey area or to damages for trespass
to those lands. However, the Trbe’s pending claims to the remainder of
the Blackbird Bend area is an action at law for eyectment in which the
defendants might be entitled to a jury tnal as opposed to the instant
equitable quiet title proceeding. The Tnbe’s arguments also ignore the
differing burdens of proof that apply to land within the Barrett Survey area
and those lands that are outside the Barrett Survey. This court in Omaha
/ and the Supreme Court in Wilson agreed that the imposition of the
burden of proof upon the private defendants and the presumption of title
in the Omaha Indian Tribe triggered the application of 25 U.S.C. § 194
because the area of land within and defined by the Barrett Survey was
indisputably at one time a part of the Omaha Indian Reservation under
the Treaty of 1854. See Treaty of March 16, 1854, art. |, 10 Stat. 1043.
Conversely, the application of section 194 is not controlling at it affects
the areas outside the original reservation which is defined by the Barrett
Survey. Thus, as we previously stated: “the same proof showing presump-
tive title (Treaty of 1854) to the reservation cannot govern any future
litigation concerning lands outside the area.” $75 F.2d at 651 n. 69. See
also One Lot Emerald Cut Stones and One Ring, v. United States, 409 U.S.
232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (findings cannot be given binding
effect in proceedings or portions of proceedings where the prevailing party
has a higher burden of proof). Finally, there are numerous landowners
outside the Barrett Survey area who have not participated in the tnal or
any of the appeals dealing with the Barrett Survey. To quiet title in the
Tribe to the lands outside the Barrett Survey area which were not the
subject matter of the tral proceedings would improperly deny these parties
their constitutionally protected mghts to be heard.
We sense as well the Tribe’s misapprehension as to the effect of the
district court’s rejection of its claim of avulsion against the State and the
fee patented land in the present case. In the suit relating to lands outside
the Barrett Survey other than the State land and the fee patented lands,
the Tmbe’s claim must rest on their newly established title to the trust
lands within the Barrett Survey and proof of accretion to such trust land.
In pursuing these claims, the Tnbe need not prove avuisive movement of
the river as a basis of their title to the trust lands. Title has now been
quited in the Tribe and this is now a histoncal and legal fact upon which
they can make their claims to accreted lands. On the initial remand in
United States v. Wilson, 523 F.Supp. 874 (N.D. lowa 1981); the district
court attempted to apply this rule to the State and fee patented lands. Our
reversal was based upon the fact that this would allow the Tnbe to bootstrap
the section 194 presumption which was not applicable to the State or fee
patented landowners. However, this principle does not govern the Tribe’s
claims to lands which may have accreted to the trust lands and which lie
outside the Barrett Survey.
49a
APPENDIX D
United States Court of Appeals
For THE EIGHTH CIRCUIT
Nos. 87-2042/2191-N1
OMAHA INDIAN TRIBE. @fc., et al.,
Appellants,
VS.
AGRICULTURAL INDUSTRIAL INVESTMENT COMPANY, et al,
Appellees
APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR THE
NORTHERN DISTRICT OF IOWA
Appellant Omaha Indian Tribe’s petition for rehearing
en banc has been considered by the Court and is denied.
Petition for rehearing by the panel is also denied.
Order Entered at the Direction of the Court:
Clerk, United States Court of Appeals, Eighth Circuit
November 10, 1988
S0a
APPENDIX E
Supreme Court of the United States
No. A-572
OMAHA INDIAN TRIBE OF NEBRASKA
Petitioner,
#
HAROLD JACKSON. ef al.
ORDER
Upon CONSIDERATION of the application of counsel for
the petitioner,
It Is ORDERED that the time for filing a petition for a writ
of certiorari in the above-entitled case, be and the same is
hereby, extended to and including 28 February, 1989
HarRRY A. BLACKMUN
Associate Justice of the Supreme
Court of the United States.
Dated this 18th
day of January, 1989.
William H. Veeder, Washington, D.C., John T. O’Brien,
Sioux City, lowa, for Omaha Indian Tribe.
Edson Smith, Donald Buresh, Robert J. Becker, Omaha,
Neb., for Roy Tibbals Wilson.
Lyman Larsen, Thomas Burke, Omaha, Neb., for Charles
G. and Florence Lakin and Harold Jackson.
John E. North. Lee Hamann, Omaha, Neb., for Charles
and Florence Lakin.
c
—ooOoOoOooeerrn
Sla
Peter J. Peters. Couricil Bluffs, lowa. for RGP. Inc. and
Otis Peterson.
Maurice Nieland. Sioux City, Iowa. for The Travelers
Ins. Co.. Harold Sorenson and Harold M. Luea Sorenson and
Darrell L. Sorenson.
Elizabeth M. Osenbaugh, Thomas J. Miller, John P.
Sarcone, Asst. Attys. Gen., Des Moines, Iowa, for State of
lowa and Iowa State Conservation Commission.
Monona County Atty., Michael Jensen, Onawa, Iowa,
for Monona County.
D. Carlton Shull, George Madsen, Sioux City, lowa. for
Agricultural & Indus. Inv. Co.
Wiley Mayne, Lowell C. Kindig and John Mayne, Sioux
City, lowa, for numerous defendants.
Phillip J. Willson, Council Bluffs, Iowa, for Northern
Natural Gas Co.
Ronald E. Runge, Sioux City, Iowa, for Lloyd Fletcher.
Dewie J. Gaul, P.L. Nymann, Sioux City, lowa, for lowa
Public Service Co.
Robert R. Eidsmoe, Sioux City, lowa, for Mobil Pipeline.
Theodore T. Duffield, Des Moines, lowa, for Regina
Marie Torticilli.
Steven Carter, Sioux City, Iowa, for James McGuire,
Auctioneer for Hudgel Estate.
Emmanuel S. Bikakis, Sioux Ctiy, Iowa, for Williams
Pipeline Co. (formerly Williams Bros. Pipeline).
Clark G. Redick, Kansas Ctiy, Mo., for American Tel.
& Tel. Co.
Larry Fulton, Denver, Colo., for the Fidelity National
Title Ins. Co.
Ernest L. Olson, pro se.
ee
- &
~
]
ami
APPENDIX F
WILSON:
OMAHA INDIAN TRIBE
Vv.
JACKSON;
OMAHA INDIAN TRIBE
\
AGRICULTURAL & INDUSTRIAL
INVESTMENT CO
Nos. C75-4024, C75-4026 and C75-4067.
United States District Court,
N. D. lowa, W.D.
Sept. 4, 1981.
$9
MEMORANDUM OPINION
BOGUE, Chief Judge.
The Eighth Circuit Court of Appeals remanded these
cases to this Court to determine the facts in light of the
principles and conclusions set forth in both its second opin-
ion. Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th Cir.
1980), and in the opinion of the United States Supreme
Court. Wilson v. Omaha Indian Tribe, 442 U.S. 655, 99 S.Ct.
2529, 61 L.Ed.2d 153 (1979). This Memorandum Opinion
provides this Court’s resolution of several issues of law and
fact remaining in the consolidated Blackbird Bend-Barrett
Survey area cases.
Il. FACTUAL BACKGROUND
These cases concern the ownership of approximately
2,900 acres of land on the east bank of the Missouri River in
lowa. The parties seek to quiet title to the land, which was
affected by the movement of the banks of the Missouri River
over a period of nearly eighty years. The history of this land
dispute and the discussion of the early movement of the
Muissour: River 1s set out in the Court’s original opinion, 433
F.Supp. 67 (N.D.Iowa 1977), as well as the two opinions of
the Court of Appeals. 575 F.2d 620 (8th Cir. 1978); 614 F.2d
1153. The Court of Appeals vacated this Court’s original
judgment and remanded the case with several directions.
First, the Court entered judgment quieting title to the trust
lands involved in this action, except those claimed by the
State of lowa, in the United States as trustee and the Omaha
Indian Tribe. Second, the Appellate Court ordered that the
Tribe’s case against the State by severed, so that this Court
could separately determine whether the Tribe sustained its
burden of proof against the State. 614 F.2d at 1161.
Several additional issues were not resolved by any of the
Appellate Court decisions in this case. One issue concerns
the ownership of land within the Barrett Survey which was
allotted to individual Indians and subsequently patent to
non-Indians, or relinquished by the Indian allottees back to
the Tribe. The Court of Appeals’ second decision concerned
$38
only trust lands and failed to respond to issues of ownership
of “fee patented” lands. The Court’s first decision remanded
the issues of fee patented land ownership back to this Court’s.
575 F.2d at 651, n. 70. This Court must further address the
defendants’ claim for the value of improvements placed upon
land in which title was quieted in plaintiffs. Finally, this Court
has before it the parties’ motions for summary judgment
concerning title to lands outside the Barrett Survey within
the Blackbird Bend area.
To better understand the remaining issues and claims of
the parties the Court refers to Exhibit T80. (Plate 1) The large
dotted area represents land which has never been allotted to
any member of the Omaha Tribe and has never been patented
by the United States to anyone. These are trust lands claimed
only by individual defendants and clearly are governed by
the Court of Appeals’ order to this Court to quiet title in the
Tribe. The small dotted areas on Exhibit T80 represents
allottees or cancelled. See also, Exhibits A through P.'
Finally, the cross-hatched areas on Exhibit T80 are lands
which have been patented in fee or otherwise left their trust
Status after the 1854 Treaty. The individual defendants assert
a claim to the fee patented lands based upon state laws for
adverse possession, statutes of limitation and laches.
The Tribe contends that both the individual defendants’
claim to fee patented lands and the State of Iowa’s claim to
land along the western edge of the Barrett Survey, are defeated
by the evidence establishing that all of the land in the western
Barrett Survey was eroded and replaced by accretions to
tribal trust land. The prior decisions in this case place upon
the Tribe the burden of proving its case against the State by
a clear preponderance of the evidence. 99 S.Ct. at 2543: 614
F.2d at 1161. This Court must address first the State’s
argument concerning the scope of the Tribe’ burden of proof.
' Exhibits A through P are the letters of various allottees or their
heris requesting that their original allotments within the Omaha Indian
Reservation be exchanged for new allotments. Because of the encroiach-
ment of the Missouri River.the orginal allotments had become unsuitable
for farming. (Corke-86:12-88:1! 2).
S4a
Il. THE TRIBE’S BURDEN OF PROOF AGAINST THE
STATE OF IOWA
The Tribe asserted title to trust land in the eastern
portion of the Barrett meander lobe based on a series of river
avulsions between 1867 and 1923. which left these original
reservation lands in place. 433 F.Supp. at 70-71. After
reaching its 1923 position,” however, the Tribe asserted the
River moved easterly, eroding the western portion of the
Barrett Survey up to a line running north to south through
the western edge of Nebraska Sections 13 and 24,’ From this
line eastward in the Barrett Survey, the Tribe alleged its
lands left in place by pre-1923 river avulsions were not later
obliterated. From this line, to the west in the Barrett Survey
up to the 1943 Iowa Nebraska Compact line, the following
specific River movements were asserted: (1) From 1923 to
1930, the River eroded all of the Barrett Survey lands lying
west of the “not obliterated” line, as the River move eastward;
(2) From 1930 to 1943, the River receded westward to its
present location, replacing all of the western Barrett Survey
lands with accretions and relictions. These accretions
attached to tribal lands in place in the Barrett Survey east of
the “not obliterated” line. See, Tribe’s Post-Trial Proposed
Findings of Fact, No. 58; (1446:9-1447:24).
The Tribe owns the trust lands east of the “not obliter-
ated” line by virtue of the Court of Appeals’ decision which
held that the individual defendants failed to prove their
Superior title thereto based on pre-1923 river movements.
575 F.2d at 650, 651; 614 F.2d at 1161. The land claimed
by the State of lowa is located along the Compact line in the
western portion of the Barrett Survey. See, State’s Proposed
Findings on Remand, No. 41. Consistent with its original
theory, therefore, the Tribe asserts title to these lands as
accretions created after 1923, which attached to eastern tribal
lands.
The State of Iowa, however, contends that the Tribe
must affirmatively prove pre-1923 river avulsions as well as
> Exhibit T105, (Plate 2)
> See, Exhibit T80; (Abrahamson—1!425:7-19)
7)
Sa
movement by accretion thereafter.” The State asserts it 1s not
bound by the Court of Appeals’ decision quieting tribal title
to the eastern Barrett Survey lands, since that decision was
based upon the failure of other defendants to meet their
burden of proof under 25 U.S.C. §194. That decision “does
not establish, in this proceeding in which the [Tribe has] the
burden of persuasion, that the river moved to its 1879 and
1923 positions by avulsion....” State’s Proposed Conclusions
on Remand, No. 10. Given the reallocation of the burden of
proof on remand, the State contends there is a “nonidentity
of issues.” In support of its conclusion that the Tribe must
prove pre-1923 avulsions over eastern Barrett Survey lands,
the State cites Young & Co. v. Shea, 397 F.2d 185, 188-189
(5th Cir. 1968); Jn re Four Seasons Securities Laws Litigation,
370 F.Supp. 219, 235 (2.d.Ok1.1974); Finnerman V. McCor-
mick, 499 F.2d 22, 214 (10th Cir. 197); Shimman y. Frank,
625 F.2d 80, 89 (6th Cir. 1980). These cases stand for the
rule that a judgment obtained in a prior, distinct proceeding
will not resolve common issues of fact in a subsequent case
between the same parties, in which the burden of persuasion
differs. See also. Rest.2d Judgments, § 68.1!(d).
Admittedly, this is not a proper case for the invocation
of the doctrines of res judicata and collateral estoppel. Res
judicata requires a showing that there has been a previous
action between the same parties involving the same subject
matter, in which a final judgment has been rendered with
respect to the same cause of action. Parklane Hosiery Co.,
Inc. V. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552
(1979): Bryson V. Guarantee Reserve Life Ins. Co., 520 F.2d
563 (8th Cir.1975). Clearly, the Tribe does not invoke a
judgment obtained in a prior, distinct proceeding. The
judgment quieting tribal title in eastern Barrett Survey trust
*This Court is puzzled by the Court of Appeals’ statement that the
Tribe should “point out specific evidence relied upon to show avulsion on
the particular land claimed by the State.” 614 F.2d at 1161. A cursory
reading of either the Tribe's Post Trial Proposed Findings or the Record
the Tribe developed at trial would have revealed that its claim against the
State did not rely upon proof of pre-1923 avulsions. This Court does not,
therefore, deem that statement controlling on remand.
S6a
lands was entered on appeal in this action, and it concerned
the title to property distinct from the land the State claims.
Further, collateral estoppel means that when an issue of
ultimate fact has once been determined by a valid and final
judgment, the issue cannot again be litigated between the
same parties in a future lawsuit. Harris V. Washington, 404
U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971); Oldham vy.
Pritchett, 599 F.2d 274 (8th Cir. 1979). The issue of ultimate
fact determined by the Court of Appeals was title to trust
lands claimed by other individual defendants. Title to that
land is no longer in issue. This case, on remand, does not
concern the power of the Court to decide issues already
determined by a prior, distinct proceeding. Neither collateral
estoppel, therefore, nor any exception to the doctrine based
on reallocations of burden of proof, apply to this stage of the
proceeding.
Nonetheless, the State cannot require the Tribe to prove
river movements over eastern trust lands the State does not
claim, the title to which was quieted in the Tribe against
other defendants. The decision of the Court of Appeals did
not resolve an issue of fact common to the issues now before
this Court. The fact that the burden of proof differed
concerning other land and other parties is of no consequence
to the Tribe‘s claim against the State.
It does not matter that the Court of Appeals did not
finally determine the nature of the pre-1 923 river movements
over eastern trust lands. That issue is no longer relevant.
The State does not claim title to any eastern trust lands
affected by the pre-1923 river and governed by the Court of
Appeals’ mandate. Proof of pre-1923 river changes is not
essential to the Tribe’s claim against the State. The decision
of the Court of Appeals quieting tribal title to land lying east
of the State’s claims, therefore, constitutes the law of this
case.
The Eighth Circuit Court of Appeals has repeatedly
stated:
When a case has been decided by this court on appeal
and remanded to the District Court. every question
-—
/a
which was before this Court and disposed of by its decree
is finally settled and determined. The District Court 1s
bound by the decree and must carry it into execution
according to the mandate... That Court 1s without power
to do anything which is contrary to either the letter or
spirit of the mandate... Thornton vy. Carter, 109 F.2d
316, 319-320 (8th Cir. 1940); Houghton V. McDonnell
Douglas Corp., 627 F.2d 858, 865 (8th Cir. 1980); Psull
V. Archer-Daniels-Midland Co., 313 F.2d 612 (8th Cir.
1963).
To require the Tribe to reassert its evidence of river move-
ments over land which it owns under the Court of Appeals
mandate would be contrary to the decree this Court is bound
to execute upon remand of this action.
Accordingly. the evidence which is relevant to the Tribe's
claim against the State is that which concerns the movement
of the river, from 1923-1943, over the land the State claims.
58a
882 523 FEDERAL SUPPLEMENT
Abedioned Lath, Dete of Last Title
Trnveier Prior to the Intry of the
Alueourt River Upon Said Lard
Lads ‘nich Title Mewes Alizys Bees
in the Cowes Indien Tribe Sirce
im
Allottad Lands Rel irquisted Beck
to the Overs Ircien Tribe
\OWA
weuens COU. te
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60a
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64a
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The 1944
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~
66a
Ill. THE MISSOURI RIVER BETWEEN 1923-1943
A. U.S. Corps of Engineers maps and aerial photographs
trace the location of the river during this period. In 1923.
(Exhibits W-04; T-35; T-105, composite), the river flowed
north to south through Nebraska Sections 10, 11, 14 and 15.
(341:8) When it reached the southeast corner of Section 15,
the river made a 90 degree angle turn to the east, traversing
the southern portion of Sections 14, 13 and 18. The river
then turned south at left the Barrett Survey area. The land
on the east bank, in Sections 11, 14, 13 and 18, was supporting
some vegetation, consisting primarily of small willows.
After 1923, the river became “braided.” (1073:12-14)
That is, the river flowed in a wide riverbed, with many
channels. (1101:23-25) From 1923 to 1927 (Plate 3), the left
bank of the river migrated a mile to the east, into Sections 13
and 24. (2084:12) (Exhibits W-54, T-36, T-106, composite) In
1928, the riverbed extended from the western half of Section
15, across Section 14, to the west half of Sections 13 and
24. (Exhibit T-107) The maps, photographs, and expert
testimony indicate that the left bank in Sections 13 and 24
consisted of fast, stable land supporting willows and other
vegetation. (Robinson 1075:13-16; 1078:10-16;); (Exhibit
T-107, composite); (Clark-358). The 1928 left bank marks
the farthest eastern progression of the river in the Barrett
Survey during this period. (Plate 4)
After 1928, the river migrated westward away from the
1928 eastern high bank. In 1930, the left bank of the river
ran in a southeasterly direction across Sections 10 and 14. A
large, continuous sand bar developed between the fast, stable
land in Section 13 and the receding left bank. (Huber
2086:12-16) The location of the river in 1930 is indicated
by Exhibits T-4i, V-4, T-108 and Iowa H-8. (Plate 5)
Through 1932, the river continued to recede westward.
(1085:17-20); Exhibit 109; (1098:23-25)
In 1936, the Corps of Engineers began construction of
structures in the Blackbird Bend area designed to train the
river into a fixed alignment. 433 F.Supp. at 86 (2092:10)
The projects consisted of dikes and an abatis. Several private
67a
individuals® also constructed levees across the Barrett Survey
lands. The Corps constructed dike 749.3, in a southwesterly
direction across Sections 14 and 15. Exhibit, Wilson D-5.
Additionally, a private structure (the Peterson levee) was
built north to south across the western half of Section 13.
This levee coincides with the farthest eastern progression of
the river after 1923. Exhibit, Wilson I-5. Another private
structure (Kirk levee) and an abatis built in the northwest
corner of Section 13 also affected the course of the river
across the western Barrett Survey.
The maps and photographs of the river in 1937 (Exhibit
B-5), 1939 (Exhibit D-5) and 1940 (Exhibits F-5 and G-5)
show the progressive westward movement of the main chan-
nel until it reached the 1940 designed channel. (Plates 6 and
7) The river receded substantially from Sections 11, 14 and
23 by 1937. In 1939, there was fast, stable land in Section
11 and in the eastern half of Section 14, supporting willows
and other vegetation. By 1940-1941, the river was largely
confined to a single channel which corresponded approxi-
mately to the 1943 lowa-Nebraska Boundary Compact line.
Exhibits I-8 and Wilson G-5. Intermittent channels crossed
sand bars on the ieft bank in Sections 10, 11, 15,22, 23 and
the western edge of Section 14. These sand bars showed
characteristics or permanence, including vegetation.
Having established the location of the river during this
period, this Court will review the testimony concerning the
nature of the river movements.
B. The Tribe asserts all of the land west of Sections 13
and 24 in the Barrett Survey formed as accretions to eastern
tribal lands. The Tribe relies upon the testimony of its own
expert witnesses, Doyle Abrahamson (surveyor), Dr. Charles
Robinson (geologist), and Elmer Clark (surveyor).
1. Mr. Abrahamson testified specifically concerning the
location and obliteration of the “fee patented” lands in the
western Barrett Survey. Exhibit T-80 (1416:1, et seg.) As
the river moved eastward after 1923, land in the western
* Defendant's predecessors in interest, Kirk and Peterson.
68a
Barrett Survey eroded away. “Fee patented” lands in Sections
10, 11, 14 and 15 were destroyed shortly after 1923. (1417-
1419). Other fee land in Section 14 eroded away by 1927.
(1419:17) By 1928, the river had obliterated fee land in
Sections 22 and 23. (1420:8) Finally, by 1930, Abrahamson
concluded “all of the fee patented tracts had been obliterated.”
(1420:22-23) Relinquished allotments in the western Barrett
Survey were likewise eroded away by 1930. (1424:9)
Abrahamson drew a line across the western half of Sec-
tion 13. This line marked the farthest eastward progression
of the river after 1923. Lands east of this line were not
obliterated by the river during this period. (1425:7, ef
seq.) Additionally, this line coincided with a “relief” which
Abrahamson observed on the ground across the western half
(WZ) of Sections 13 and 24. (1421:18) By the term “relief,”
he meant a difference in elevation between the eastern “not
obliterated” lands and those tracts in the western Barrett
Survey. He concluded the land to the west of this “relief”
constituted a continuous piece of land, extending to the
present location of the river. (1422:10, 1423:20)
2. Dr. Robinson’s conclusions are consistent with Abra-
hamson’s testimony. He conducted soil composition studies
of both the surface and subsurface geology of the Blackbird
Bend area. (790-792) He agreed that Barrett Survey lands
in Sections 13, 19, 20 and 24 were not obliterated by the river
when it travelled east to its 1928-1930 position. (1292:19-22).
The western Barrett Survey was part of the riverbed during
this period. Dr. Robinson stated the river moved westward
after 1928 and the artificial structures built in the mid-1930s
aided this process. (1102:11-12) The purpose of the Corps’
projects was to confine and “straighten” the river. Conse-
quently, the river’s “gradient increased and the erosive power
of the river was increased, and the level (of the riverbed)
dropped....” (1094:3-9) Dr. Robinson concluded that the
river eroded the land in the western Barrett Survey when it
moved west after 1930, because the dikes and abatis caused
the river to be “shortened” and because the level of the
riverbed was lowered. (1096:24-25) Asa result of the lower
river level, land in Sections 11, 14 and 23 reemerged and
69a
became stable. (1094:11-18) These new lands were “continu-
ous,” extending from Section 13 westward. (1097:10-16) Dr.
Robinson testified that the reemergence of new land was an
“imperceptible” change occurring after 1923. (1096:5-8).
The western barrett Survey land which appeared as the river
receded 1s identifiabie and in place today. (1098:25-1099:1)
3. The Tribe’s witness, Mr. Clark, observed that river
levels in the Blackbird Bend area reflected a wet cycle from
1920-1930 and a drought period from 1930-1940. (505:9-
11) He stated the Corps’ dikes and abatis, together with
private structures, diverted the river westward in the Barrett
Survey and prevented the encroachment of the river upon
eastern Barrett Survey land. (398-399) Additionally, up-
stream impoundments of the river after 1935 affected the
flooding, erosion, accretion and reliction of the river through-
out the western Barrett Survey. (502, 520-521)
Summarily, the Tribe’s witnesses agreed that western
Barrett Survey lands were first obliterated by the eastward
progression of the river from 1923-1928; new land reappeared
in this area attaching by accretion and reliction to Sections
13 and 24 when the river eroded and receded westward from
1928-1943. Defendant’s experts drew substantially the same
conclusion.°
Most significant is the testimony of Mr. Raymond Huber
concerning the effect of the dikes and abatis built in the
Barrett Survey during this period. (2092:23, et seq.) The
dikes served to “train the river over into the alignment which
was designed by the Corps of Engineers.” (209:23-24) A
dike. Huber stated, causes deposition and accretion to repar-
°See, testimony of Dr. George Hallberg (geologist), at 2654:18; 2690,
et seg. Significantly Hallberg concluded the land in Section 11 was formed
after 1927 by “accretion type bar deposits.” (2702:8-24) And land in
Section 14 and 23, as shown on the 1940 map, were accretions to the east
bank. (2708:20-2709:8) See also Testimony of Mr. Huber, who worked
in this area for the Corps of Engineers after 1936. (1982:8: 2083;2 er seq.)
He agreed that western and southern portions of the Barrett Survey were
eroded away through 1928 and 1930, (2085:3-17: 2086:7-10) Huber
concluded, generally, that from !923 to 1940, the mver moved east and
then west, by erosion and accretion. (2102:23-2103;3)
70a
ian land because it slows the current of the river.’ (2094:3-
4) Huber also referred to the private levees constructed to
drain as well as to shield eastern Barrett Survey lands from
encroachment by the river. (2101:3) None of these structures,
he concluded, were built to cause an avulsion. (2095:10)
4. The growth of vegetation during this period, as shown
by the maps and photographs, is consistent with the move-
ment of the river by erosion against the right bank and
accretion deposition and reliction to the left bank.® Similarly,
soil samples taken from the western Barrett Survey consist
primarily of silts, fine sand or very fine sand. Exhibit, Gov't
151. These materials are not cohesive and are easily erodable.
(2537:13-16) These are soils typically deposited in an alluvial
floodplain following the migration of a river.
C. The State of Iowa’s island and abandoned channel
theory
Under the terms of the lowa Nebraska Boundary Com-
pact, the areas claimed by the State of Iowa was ceded by the
State of Nebraska. Therefore, Nebraska law governs title
claims based upon land formed in this area prior to the
Compact date of July 12, 1943. Nebraska v. Iowa, 406 U.S.
117, 120, 92 S. Ci. 1379, 1361, 31 L.E@.2a 733 (197 2).
However, lowa law controls events occuring after the Com-
pact date. State vy. Simmons, 290 N.W.2d 589, 593 (lowa
1980), cert. denied, 449 U.S. 842, 101 S. Ct. 123, 66 L.Ed.2d
50 (1980). In lowa, the State owns the bed of all navigable
streams from the ordinary high water mark to the “thread”
or center of the stream, as well as all islands arising therefrom.
Mather vy. State, 200 N.W. 2d 498, 500 (Jowa 1972). In
Nebraska, the riparian proprietor owns the riverbed to the
thread of the stream and all islands which develop by accret-
ion to the stream bed. Valder v. Wallis, 196 Neb. 222, 242
An abatis likewise slows the flow of the river, causing deposition
downstream as well as upstream. (2131:20-25) Huber testified an abatis
in the Barrett Survey formed accretion in Section 14. (2143:17)
*The Court of Appeals noted: “A large stand of timber shown in the
northwest corner of the Barrett Survey area prior to 1923 was no longer
visible in a 1927 aerial survey of the area, indicating the land on which it
stood had been eroded.” $75 F.2d at 649, n. 63.
7la
N.W. 2d 112 (1976); Thies v. Platte Valley Public Power and
Irrigation District, 137 Neb. 344, 289 N.W. 386 (1930).
The State of lowa admits the western edge of the Barrett
Survey was a part of the bed of the Missouri River between
1923 and 1931.? The State, however, asserts the land it
claims consists of an island and exposed, abandoned river
channels which did not form until after 1943. Therefore, the
State of Iowa claims title to the tracts based upon the Equal
Footing Doctrine and the doctrine of state ownership of the
bed of navigable streams, Montana vy. United States, 450 U.S.
544,101 S. Ct., 1245, 67 L.Ed2d 493 (1981); Oregon, ex rel.
State Land Board v. Corvallis Sand and Gravel Co., 429 U.S.
363, 97S. Ct. 582, 50 L. Ed.2d 550 (1977); State v. Simmons,
supra; Mather v. State, supra.
The Tribe contends that the land occupying the area the
State claims developed as accretions and relictions to riparian
tribal land, not as an island or abandoned channel. The
United States argues, alternatively, that if an island did form,
it was a permanent formation prior to 1943. Under Nebraska
law, the Government and the’Tribe, as riparian land owners,
would also own the “island.”
The State’s claim under the doctrine of state ownership
of the bed and banks of navigable rivers is inconsistent with
the theory upon which it relied at the close of the trial of this
case. The State joined in the post-trial brief of defendants,
in which the State asserted the eastward movement of the
river from 1923-1930. Thereafter, the State agreed the river
moved westward by accretion to the left bank.'® Significantly,
the State also joined in defendant’s statement that, “... all
parties agree that the fee patented lands were eroded away
and washed down theriver. They disagree as to the ownership
of the land to which the accretion land, now occupying the
area formerly occupied by the fee patented land, became
attached.”'' The State’s position at the close of trial was that
the land it claims formed as accretions to riparian mainland
*lowa Proposed findings and Conclusions, on Remand, No. 40. See.
Exhibits R-4, S-4, V-4, Y-4, 41 and 42.
'° Defendant's Post-Trial Brief, filed February 16, 1977, at p. 30.
‘' Td. at 46.
eee
72a
owned by other defendants, who conveyed their interest in
such lands to the State by quit claim deeds. Specifically, the
State joined in asserting Proposed Conclusion of Law, No.
VII, which concluded that all of the land within the Barrett
Survey formed as accretions to the left or lowa bank, prior
to 1943.
The State on remand, however, proposed that the land
it claims did not accrete to the left bank prior to 1943.
Instead, it asserts the tracts formed as an island accreting to
the riverbed apart from the left bank, and as an abandoned
river channel, after 1943.
An island traditionally is defined as a permanent body
of land, separate and distinct from the mainland, and above
mean high water. An island must be surrounded by distinct
channels of the river, which separate the island from the
mainland. Burkert v.Krimlofski, 167 Neb. 45, 91 N.W.2d 57
(1958); Summerville v. Scotts Bluff County, 182 Neb. 311,
154 N.W.2d 517 (1967); State v. Raymond, 254 lowa 828,
119 N.W.2d 135 (1963); Mather v. State, supra.
The State of Iowa presented no testimony at trial to
support its post-1943 “island” and abandoned channel theory.
Nonetheless, the State refers to maps and aerial photographs
of the western Barratt Survey.'? These exhibits allegedly
trace the development of an “island” adjacent to and south
of dike 749.3, in Sections 14, 15 and 23. The area adjacent
to and north of the dike is the land the State claims as an
abandoned river channel. A 1944-1945 aerial photographic
mosaic, the State concludes, depicts an “island” in permanent
existence for the first time. Wilson Exhibit H-5. The State
claims this island formed as a sandbar within the Iowa portion
of the riverbed, separated at all times from the lowa shore
by a well-defined channel.'?
'*Exhibits Wilson K-K, L-L (photographs of dike); Wilson Exhibits B-
5 (1937 Corps map); F-5 (1940 map); G-5 (1941 map); see also, Wilson
Exhibits J-5, K-5, and M-5; lowa Exhibits HO8, 108, KO8 (Mylar overlays).
‘> The State argues that dike 749.3 contributed to the development of
Ivy Island from a sandbar in the nverbed. In its Proposed Findings and
Conclusions, post-trial, however, the State asserted, “[t]hese dikes and
abitis had the effect of forming accretion to the Iowa riparian land adjacent
to the dikes (2093:24).” at p. 36.
73a
In considering a claim that an island arose from the
riverbed, separated from both riparian banks, certain evi-
dence is relevant. For example, in 7yson v. State of Iowa,
283 F.2d 802 (8th Cir. 1960), the Eighth Circuit Court of
Appeals considered eye witness testimony, photographs, land
surveys, and dendrochronology studies reporting the size, age
and location of vegetation. In this case, the State offered no
testimony, eye-witness or otherwise, supporting the develop-
ment of an island and abandoned river channel. This fact is
particularly remarkable in view of the time period involved.
Witnesses would certainly be available to testify concerning
developments occurring only after 1943. The State offers
photographic evidence of its theory, however.
Specifically, the State relies upon the 1944-1945 photo-
mosaic, depicting the “island” as a permanent formation. On
this basis, the State contends the island could not have
developed prior to 1943. Unfortunately, no photograph
offered by the State depicts the area as it appeared in 1943.
There is a gap of three years in the State’s proof—from 1941
(photo exhibit G-5) to 1944-1945 (exhibit H-5). The State
wishes this Court to speculate concerning the permanence of
the land it claims in light of the development of vegetation.
It is, however, only an “educated guess” by the State that
vegetation appearing in 1944 was not also present before
1943. Indeed, the land in the area of the State’s claims does
appear to be supporting some vegetation in the 1941 aerial
photograph. Additionally, the Tribe offered Exhibit 105A. a
summary of a dendrochronology study of Blackbird Bend
conducted by George S. Gorsuch. (1357:4, et seqg.). In
the area comprising the State’s claimed “island,” the study
located some cottonwoods aged forty-two years, originating
in 1943. It is undisputed that cottonwoods are secondary
vegetation. which will not grow until after the land is dry.
established. and capable of supporting primary growth, such
as willows. 433 F.Supp. at 76. As the Court of Appeals
stated.“ ... vegetation does not usually appear on a sandbar
until it has been in existence for several vears.” 283 F.2d at
810.
74a
Therefore, this Court concludes the State, on remand,
referred to only speculative evidence concerning its claims
that Ivy “Island” was a permanent formation only after
1943. Moreover, the State cited no testimony concerning the
formation of an independent island—in order to refute its
previous position that the land comprising Ivy “Island” con-
stituted accretions to the left bank. The State offered no
evidence at trial concerning the nature of the channel which
it claims separated the “island” from the left bank. Aerial
photographs taken in 1945 and 1954 could equally support
the conclusion that Ivy “Island” was surrounded by water
“only when the river [was] high and connected with the
mainland when the river [was] low.” Mather v. State, 200
N.W.2d 498, 501 (lowa 1972). In fact, Doyle Abrahamson
testified that the stream appeared to the east of the “island”
after the land had already formed as accretions and relictions
to the left bank. (1427:19-1429:14). Accordingly, the Tribe
argues it retains title to the accretions. This position 1s
consistent with the law of Nebraska. which provides, “[w]here
an accretion was begun by a deposit against the shores of the
mainland, the subsequent existence of an intermediate stream
between the mainland and the accretion does not prevent
the accretion from the belonging to the mainland owner.”
Independent Stock Farm vy. Stevens, 128 Neb. 619, 259 N.W.
647, 649 (1935).
FINDINGS OF FACT ON THE MERITS
From all the evidentiary matters considered, the Court
finds:
1. That in 1928, the Missouri River cut entirely across
Nebraska Sections 10, 11, 14 and 15, within the Barrett
Survey. By the process of erosion, the riverbed and the left
bank were obliterated.
2. That from 1923 to 1928, the river gradually migrated
eastward in the Barrett Survey. During this migration the
river eroded and obliterated land occupying the left bank and
the riverbed. The 1928 left bank of the river represented the
farthest eastern migration of the river in the Barrett Survey
after 1923.
3. That in 1928, the left bank of the river occupied the
west half of the west half of Sections 13 and 24. The river
occupied substantially all of the tracts claimed by the State
of Iowa as well as the entire area described in the fee patents
which individual defendants claimed. As a result of the
erosion of the river through 1928, all of the land within the
Barrett Survey west of the 1928 left bank was obliterated and
no identifiable land remained in place.
| 4. That from 1928 to 1943, the Missouri River reversed
| its direction and migrated westward over the Barrett Survey.
| The river further eroded and excavated the right bank and
gradually and imperceptibly deposited silt and sediment upon
the left bank. These accretions attached to fast, stable land
in Sections 13 and 24 which were riparian to the left bank of
the river between 1927 and 1930.
and levees were constructed across the western Barrett Survey
by both the Corps of Engineers and private individuals. The
purpose of these structures was to create accretions to land
adjacent to the structures, to drain or protect eastern Barrett
Survey lands, and to train the river into a designed channel.
These structures contributed to the gradual subsidence of the
river, westward, from the 1928 left bank. By this additional
process of reliction, new lands were uncovered and added to
the left bank.
= 5. That artificial structures, including an abatis, dikes
.
6. That by 1943, the accretions and relictions were new
lands contiguous to Sections 13 and 24 and continuous
westward to the present location of the Missouri River.
Sebsequent to the formation of these continuous accretions.
an intermediate stream cut across Sections 10, 11, 14, 15, 22
and 23. This stream separated accretions adjacent to the
lowa-Nebraska Compact Line from the mainland, thereby
creating the body of land known as Ivy “Island.” Ivy “Island,”
therefore did not form by accretion to the riverbed, below
| the ordinary high watermark.
EE
76a
7. That the State of lowa presented no evidence to
establish a factual predicate for its conslusion, on remand,
that the land south of dike No. 749.3 formed as an island in
the lowa portion of the riverbed after 1943 or that the land
north of dike No. 749.3 is an abandoned river channel. This
Court's findings concerning the tracts claimed by the State of
lowa are not based upon inferences drawn from any weak-
nesses in the State’s evidence tending to prove its island and
abandoned channel theory. Rather, the findings of this Court
are based upon the clear preponderance of the evidence,
presented by both the Tribe and defendants. that the river
changed during this period by creating continuous accretions
and relictions to the left bank riparian land.
8. That there is no substantial evidence defendants or
their predecessors possessed any fee patented tracts during
the time the river occupied the western Barrett Survey from
1923 to 1930.'* The dry lands defendants occupied after the
river finally receded from the western Barrett Survey were
not the original fee patented lands. The defendants entered
upon new lands fromed by accretion and reliction to stable
land in Sections 13 and 24. These accretions replaced the
fee patented tracts which were eroded and washed away by
the river prior to the entry by defendants or their predecessors.
9. That no party to this case either pleaded or submitted
evidence to prove that the river moved by avulsion from
1923-1943.
CONCLUSIONS OF LAW
1. The Court of Appeals ordered this Court to quiet title
to the trust lands involved in this action, except those claimed
by the State of Iowa, in the United States as trustee, and in
the Omaha Tribe. This order establishes as the law of this
case that the Tribe is the owner of all Barrett Survey land
'“For example, concerning the fee patented tracts, counsel for defen-
dant stated: “We know nothing about them being abandoned except
nobody was occupying them while they were in the bottom of the nver.”
(113:8-10)
SSS—_—__raQQQg SE
“=
lla
east of and including Sections 13 and 24. Additionally, based
upon the Court of Appeals’ mandate, the United States and
the Tribe own those allotted parcels to which trust patents
were issued but subsequently relinquished or cancelled—
except those claimed by the State of lowa.'° The river
movements relevant to the ownership of the remaining lands
within the western Barrett Survey are those described above,
which occurred from 1923-1943. Both the Tribe and the
defendants offered proof that the river changed by accretion
and reliction.
2. Federal law. borrowing the Nebraska rule of decision,
governs this Court’s determination of river movements over
Barrett Survey land. The prior opinions in this case set out
the law of accretion and reliction in Nebraska. 433 F.Supp.
at 62-65; 575 F.2d at 633-639; 614 F.2d at 1156-1160. Two
elements are essential to a finding of accretive changes in a
river: First, “[a] boundary changes only where the river’s
change of channel is caused by a process of erosion or
excavation of earth from one bank and deposition of identifi-
able silt and sediment on the other—the land between the
old and new channels must be completely disintegrated.” 614
F.2d at 1157; State v. Ecklund, 147 Neb. 508. 23 N.W.2d
782, 789 (1946): second, “ ... no matter how ‘rapid and
great’ 1s ‘the abrasion and washing away,’ or ‘the diminution’
of soil, the accreticn (or reliction) of soil ‘is always gradual
and by imperceptible deposit of floating particles of earth.”
614 F.2d at 1157, quoting, Nebraska vy. Iowa, 143 U.S. 359,
368-369, 12 S.Ct. 396, 399, 36 L.Ed. 186 (1892). Both
elements must be present.
“Reliction” is the term applied to land added and uncov-
ered by a gradual subsidence of water from any cause. Durfee
* Allotted lands are owned by the United States, as trustee, for the
benefit of the allottee. See, 25 U.S.C. § 348: Tooahnippah vy. Hickel, 397
U.S. 598, 90 S.Ct. 1316, 25 L.Ed 600 (1970): County of Thurston, State
of Nebraska v. Andrus, 586 F.2d 1212 (8th Cir. 1978), cert.denied, 441 U.S.
952, 99 S.Ct. 2181, 60 L.Ed.2d 1057 (1978). It follows that the allotted
tracts remain trust lands whether the patient 1s subsequently relinquished
or cancelled under 25 U.S.C. § 344. As such, the tracts are governed by
the Court of Appeals’ order to quiet the Tribe's title in trust lands claimed
by the individual defendants.
78a
v. Keiffer, 168 Neb. 272, 95 N.W.2d 618 (1959); Jones vy.
Schmidt, 170 Neb. 351, 102 N.W.2d 640 (1960); Dartmouth
College v. Rose, 172 Neb. 764, 112 N.W.2d 256 (1961). Land
added by either accretion or reliction to riparian land 1s the
property of the riparian owner. J/d.; Fontenelle v. Omaha
Tribe of Nebraska, 298.F.Supp. 855, 859 (D.Neb. 1969) aff'd,
430 F.2d 143 (8th Cir. 1970).
3. The Tribe sustained its burden of proving, by a clear
preponderance of the evidence, (a) that the tracts claimed by
the State of lowa were washed away by the action of the river
eroding its bed and banks; and (b) that by a gradual and
imperceptible process of deposition and reliction, new lands
were created which attached to and extended westward from
riparian tribal trust lands in Sections | 3 and 24, continuously,
to the present location of the river. The State of Iowa,
therefore, has no claim or right thereto based upon river
movements occurring after 1923.'°
The Tribe proved the accretions and relictions to tribal
land were caused, in part, by the projects of both the Corps
of engineers and private individuals.
it is well settled that the fact that artificial means caused,
in whole or in art, the working of the processes of accretion
or reliction does not affect the rule that a riparian owner takes
new land formed against his tract. Bonelli Cattle Co. V.
Arizona, 414 U.S. 318, 94 S.Ct. 517, 138 L.Ed.2d 526 (1973),
‘©The State’s claim to western Barrett Survey lands based upon
quitclaim deeds from other defendants also falls. A quitclaim is used by
a grantor to convey only such interest as he has, 1n contradistinction to a
grant of the fee or other estate with warranty of title. United States vy.
Speidel, 562 F.2d 1129 (8th Cir. 1977), cert. denied, 435 U.S. 915, 98 S.Ct.
i468, 55 L.Ed.2d 505 (1977): Walters v. Walters. 231 lowa 1267, 3 N.W.2d
$95 (1942): Mack v. Tredway. 244 lowa 240, 56 N.W.2d 678 (1953); Swab
Appanoose Country Club, 203 N.W.2d 318 (lowa 1972); Kennedy vy.
Potts, 128 Neb. 213, 258 N.W. 471 (1935); Smith v. Berberich, 168 Neb.
142, 95 N.W.2d 325 (1959). “[U]nder a conveyance by a quitclaim deed
the grantee can acquire no better interest than the grantor had. If the
grantor himself has no title or interest to the property conveyed, most
courts hold that the grantee takes nothing under a quitclaim deed.... ”
23 Am.Jur.2d, Deeds § 291, at p. 324. Based upon this Court’s findings
and conslusions, the individual defendants had not title to western Barrett
Survey land. It follows that the State takes no title under a quitclaim deed
from the defendants.
ew
~ +
Ya
rev'd on other grounds, 429 U.S. 363, 97 S.Ct. 582. 50 L.Ed.2d
550; County of St. Clair v. Lovingston, 90 U.S. (23 Wall.)
56, 23 L.Ed. 59 (1874); Duke v. Durfee, 215 F.Supp. 901
(D.Mo.1961), rev'd on other grounds, 308 F.2d 209 (8th Cir.
1962), rev'd, 376 U.S. 106, 84 S.C.. 242, 11 L.Ed.2d 186
(1963); Kansas v. Meriwether, 182 F. 457 (8th Cir. 1910). In
Krumweide v. Rose, 177 Neb. 570, 129 N.W.2d 491 the
Nebraska Supreme Court referred to a channelization project
similar to that of the Corps of Engineers in this case. The
court held, “... this devetopment work finally resulted in the
destruction of the western channel...and the acceleration
of accretion... The fact that third parties performed con-
struction work and accelerated these processes does not alter
the application of the rule as to ownership of accretion land.”
177 Neb. 570, 129 N.W.2d 491, 496 (1964). Accord, Valder
Wallis, 196 Neb. 222, 242 N.W.222, 242 N.W.2d 112
(Neb.1976):; Krimlofski v. Matters, 174 Neb. 774, 119 N.W.2d
501 (1963); Ziemba v. Zeller, 165 Neb. 419, 86 N.W.2d 190
(1957).’
4. By virtue of the Court of Appeals mandate, the
United States, as trustee, and the Tribe own trust lands in
Sections 13 and 24 of the Barrett Survey. These lands were
riparian to the 1928 left bank of the Missouri River, when it
moved easterly in the Barrett Survey. Accretions to land
owned by the United States in Sections 13 and 24 are also
lands owned by the United States. United States v. Boyd.
458 F.2d 1252 (6th Cir. 1972); United States v. Claridge, 416
F.2d 933 (9th Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct.
994, 25 L.Ed.2d 253 (1970); Beaver v. United States, 350 F.2d
4 (9th Cir. 1965), cert. denied, 383 U.S. 937, 86 S.Ct. 1067.
15 L.Ed.2d 843 (1966). This general rule applies equally to
lands which the United States owns in trust for an Indian
tribe. Wilson, 442 U.S. at 673, 99 S.Ct. at 2540; Fontenelie
v. Omaha Tribe of Nebraska, 430 F.2d 143 (8th Cir. 1970).
"See also, Lundquist, “Artificial Additions To Riparian Land: Exten
ding the Doctrine of Accretion, 14 Anz.L.Rev. 315 (1972): Beck, The
Wandering Missouri River. A Study in Accretion Law, 43 N.D.L.Rev. 429
449 (1967), 63 A.L.R.3d 249
80a
United States y. Flower, 108 F.2d 298 (8th Cir. 1939);
Newman y. United States, 504 F.Supp. 1176 (D.Ariz.1981).
5. The Court of Appeals first observed that “[t}he Gov-
ernment excepted from its complaint any claim to approxi-
mately 400 acres of iand which may have been allotted
to individual Indians and subsequently patented to non-
Indians.” 575 F.2d at 651,n.70. The United States Supreme
Court also noted several hundred acres of land within the
Barrett Survey were claimed as fee patented lands. 99 S.Ct.
at 2529. Individual defendants, as well as the State of lowa,
claimed title to the “fee patented” lands under Nebraska
laws regarding adverse possession, statutes of limitation and
laches.”'® The Tribe, however, proved defendants never
possessed the actual and described in the fee patents because
the river obliterated and eroded the fee lands prior to defen-
dants entry thereupon. The lands defendants occupied after
the river finally receded were accretions to eastern tribal
lands in Section 13 and 24. Consequently, the Tribe argued
the defendants cannot adversely possess accretions to Indian
trust lands, nor may state statutes of limitation or laches
operate to divest Indian title.
It is true that Indian lands, once patented in fee. lose
their status as trust lands and are governed by state law.
Larkin v. Paugh, 276 U.S. 431, 48 S.Ct.366, 72 L.Ed. 640
(1928); Oregon ex rel. State Land Board vy. Corvallis Sand &
Gravel Co., 429 U.S. 363, 377, 97 S.Ct. 582, 590, 50 L.Ed.2d
550 (1977); Wilson, 442 U.S. at 671. 99 S.Ct.at 2539. This
Court finds and concludes, however, the Tribe established by
a preponderance of evidence that the river eroded the lands
in the western Barrett Survey area, including those described
in the fee patents, and replaced those lands with accretions
and relictions to trust land in place in Sections 13 and 24.'”
'* Neb.R.R.S., § 25-202 (1943).
'*The defendants contended 25 U.S.C. § 194 did not operate to place
upon them the burden of proof concerning river movements affecting “fee
patented” lands. This Court need not address that issue. Even if 25 U.S.C.
§ 194 did not apply and the Tribe had the burden of proof, this Court
holds the Tribe established by a clear preponderance of the evidence its
right and claim to the land occupying the area described in the fee patents.
There can be no doubt, nowever, that 25 U.S.C. § 194 has been a
8la
In both Nebraska and lowa, the effect of such a movement
of the river is to destroy the title to the land obliterated by
the movement of the river. State y. Matzen, 197 Neb. 592,
250 N.W.2d 232 (1977); Winkle y. Miters, 195 Neb. 821, 241
N.W.2d 329 (1976); Rupp v. Kirk, 231 lowa 1387, 4 N.W.2d
264 (1942): Wilcox v. Pinney, 250 lowa 1378, 98 N.W.2d 720
(1959). This court cannot, therefore, apply state laws of
adverse possession or laches based upon the former title to
the lands in fee patent.° Application of those laws if at all,
must be based upon the present character of the title to the
accretions.
It is well settled that title by adverse possession, laches,
or statutes of limitation cannot be asserted against the United
States, United States v. Denby, 522 F.2d 1358 (Sth Cir. 1975),
reh. denied, 525 F.2d 693 (5th Cir. 1975); against land which
the United States owns in trust for an Indian tribe, United
States v. 7,405.3 Acres of Land, 97 F.2d 417 (4th Cir. 1938);
Oneida Indian Nation of New York v. County of Oneida, 434
F. Supp. 527 (N.D.N.Y. 1977); Schaghticoke Tribe v. Kent
School Corp., 423 F. Supp. 780 (D. Conn. 1976); or against
land which the United States gains by accretion. Jackson v.
determinative factor in the outcome of this case. In the Appeliate stages
of this proceeding, this previously untested statute operated to shift the
ordinary burden of proof in a quiet title action to individual defendants.
This enormous burden included the task of describing the nature of river
movements which occurred beginning over 100 years ago. This Court
firmly believes the statute thereby provided the Tnbe an unconscionable
advantage in this litigation. Moreover, the statute arguably operated to
deprive these defendants of their constitutional mght to equal protection
under the law. In this age Indian Tribes are often sophisticated corpora-
tions which litigate claims using the legal and financial resources of the
United States Government. Consequently, this court believes the special
treatment aforded an Indian Tribe under 25 U.S.C. § 194 no longer “can
be tied rationally to the fulfillment of Congress’ unique obligation toward
the Indians ...” Morton v. Mancari, 417 U.S. 535, 555, 94 S.Ct. 2474,2485,
41 L.Ed.2d 290 (1974). Although this issue was not properly before this
Court. we would welcome a challenge of the statute, on constitutional!
grounds, in future cases.
°Defendants do not claim to derive title from any original fee patent
holder. Rather, they assert title by adverse possession. This current theory
presumes the continued existence of the land described in the fee patents,
but is inconsistent with defendants’ theory at trial—that a// of the Barrett
Survey lands were destroyed by the nver. 433 F. Supp. at 71.
82a z
United States, 56 F.2d 340,343,(9th Cir. 1932); Beaver, supra;
Claridge, supra. Since the lands which defendants eventually
occupied in the western Barrett Survey were no longer the
fee patented lands, but were accretions to tribal lands owned
by the United States for the Omaha Tribe,”' the defenses of
adverse possession, etc., are meritless. The new lands forming
westernly from Sections 13 and 24 became tribal lands which
never were allotted or conveyed to a restricted Indian. The
law compels this conclusion even though the new lands
occupied the same area described in the fee patents. See,
e.g., United States v. Russell, 261 F. Supp. 196 (E.D. Ok.
1966).
Defendants cite Dillon v. Antler Land Co., 507 F.2d 940
(9th Cir. 1974) for the rule that fee patent land owned by an
Indian may be acquired by adverse possession. Dillon did not
concern land destroyed or created by accretion and reliction.
Defendants continue to equate the precise fee patent land
lost by erosion, with the land they occupied when the river
finally receded from this area. This premise is groundless in
view of the undisputed evidence, offered by both the Tribe
and defendants, establishing the destruction of the fee lands
by erosion.
6. The defendants finally assert the refusal of the United
States to claim the former fee patented lands precludes the
Tribe from so doing. Admittedly,
“.. when the United States itself undertakes to represent
the allottees of lands under restriction and brings suit
to cancel prohibited transfers, such action necessarily
precludes the prosecution by the allottees of any other
suit for a similar purpose relating to the same property.”
*'This Court holds defendants did not begin to establish the “posses-
sion” required by law to constitute an adverse possession until river finally
receded from the areas described in the fee patents, sometime after 1930.
Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981). Similarly, in
Pokorski v. McAdams, 204 Neb. 725, 283 N.W.2d 824 (1979), the Nebraska
Supreme Court held that a plaintiff did not establish an adverse possession.
During the time the river occupied the land involved, the court found “no
persuasive evidence that there was any land present ... which was subject
to adverse possession.” /d., 285 N.W.2d at 827.
83a
Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 370, 88 S.Ct.
982. 984, 19 L.Ed.2d 1238 (1968) (Emphasis added).
But this rule does not bar the Tribe from recovering tribal
lands when the United States refuses to claim the same lands
on behalf of the Tribe. or from recovering lands in addition
to those the Government claims.
This Court concludes the Tribe may bring an action to
recover accretions to tribal lands, notwithstanding the refusal
of the United States to add these lands to its complaint in
these consolidated cases. Clearly, “... Congress intended by
(28 U.S.C.) § 1362 to authorize an Indian tribe to bring suit
in federal court to protect its federally derived property rights
in those vituations where the United States declines to act.”
Fort Mojave Tribe vy. Lafollette, 478 F.2d 1016, 1017 (9th Cir.
1973). “In recovering these lands, the Indians assert not
merely their own rights of occupancy, but the sovereign
claims of the United States as well.” Schaghticoke Tribe, 423
F.Supp. at 784. See also, Moe v. Confederated Salish &
Kootenai Tribes, 425 U.S. 463, 473, 96 S.Ct. 1634, 1641, 48
L.Ed.2d 96 (1976); Capitan Grande Band of Mission Indians
v. Helix Irrigation Distrist, 514 F.2d 465 (9th Cir. 1975).
Accordingly, since the defenses of adverse possession, statutes
of limitation, and laches would not be available had the
United States claimed the accretions attaching to tribal trust
lands, Board of Commissioners vy. United States, 308 U.S.
343, 351, 60 S.Ct. 285, 288, 84 L.Ed. 313 (1939); United
States v. Schwarz, 460 F.2d 1365, 1371-1372 (7th Cir. 1972);
United States v. Ahtanum Irrigation District, 236 F.2d 321,
334 (9th Cir. 1956), cert. denied, 352 U.S. 988, 77 S.Ct. 386,
1 L.Ed.2d 367 (1957), the defenses will not apply to claims
by the Tribe, on its own behalf, to recover the same lands.
Schaghticoke, 423 F.Supp. at 784-785.
For the above-mentioned reasons, this Court concludes
the defendants have no right or claim to any land in the
western Barrett Survey, including the lands occupying the
area described by fee patents.
This Court does not deviate from its original judgment
that the Missouri River moved over the Barrett Survey—in
84a
all relevant periods—by accretion to the left or Iowa bank.
Contrary to this Court’s original decree, however, the Tribe
prevails on remand. The Court of Appeals effectively deter-
mined this outcome when it quieted title in the Tribe to
eastern Barrett Survey lands. Any accretion to the left bank,
therefore, added to land which the Court of Appeals held was
owned by the Tribe. This Court will not change its view of
the evidence and cannot change the mandate of the Court of
Appeals.
IV. IMPROVEMENTS
\
The defendants interpose a counterclaim against the
United States for the value of improvements they made upon
lands, title to which is now quieted in the Tribe. The
defendants assert two theories in support of the counterclaim.
First, they contend the general principles of equity are binding
upon the United States. As a condition for obtaining equita-
ble quiet title relief, the government must do equity by
reimbursing the defendants for improvements. Second, the
defendants assert that Nebraska law governs the claim for
improvements and that they are entitled to recover under the
Nebraska. Occupying Claimants Act (NOCA), Neb.R.R.S.,
1943 §§ 76-301 to 76-311. The United States opposes the
claim for improvements for two reasons. The government
contends sovereign immunity bars the claim. Additionally,
the United States argues NOCA cannot apply to this action.
For the following reasons, this Court concludes defendants’
counterclaim for improvements is barred by the sovereign
immunity of the United States.
85a
The United States may be sued, even by counterclaim,
only when the government has waived its immunity from
suit. United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84
L.Ed. 888 (1940); United States v. Agnew, 423 F.2d 513 (9th
Cir. 1970). The terms of its consent to be sued define any
court’s jurisdiction to entertain the suit. United States v.
Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed.1058
(1941). Moreover, no waiver of sovereign immunity may be
implied, but must be expressed unequivocally. United States
v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d
114(1976). There is no generally implied waiver of sovereign
immunity when the United States commences an action.
Federal Savings & Loan Insurance Corp. v. Quinn, 419 F.2d
1014 (7th Cir. 1969).*7
Defendants assert the Government is bound, in equity,
to pay the value of improvements since it seeks equitable
relief. Defendants cite both United States v. Desert Gold
Mining Co., 448 F.2d 1230 (9th Cir. 1971), and Lacy y.
United States, 216 F.2d 223 (Sth Cir. 1954), and conclude
“(t]he Government, when applying for relief in a court of
equity is as much bound to do equity as 1s a private litigant.”
Id. at 225. Even the Court in Lacy, however, agreed that this
principle cannot be pressed to the extent of waiving the
United States’ sovereign immunity to suit by way of counter-
claim. /d.
To interpose a counterclaim for improvements, defen-
dants must either, (1) establish the statutory consent of the
United States to the suit, or (2) state a claim in recoupment
arising out of the same transaction as the claim of the United
States, to which the Government impliedly consents. United
States v. Chatham, 415 F.Supp. 1214 (D.Ga.1976); United
States v. Holder, 292 F.Supp. 826 (D.lowa 1968). Defendants
do not identify any statute by which the Government consents
*? The Federal Rules of Civil Procedure. Rule 1 3(d) affirms the general
principle of soverign immunity. It specifically states Rule 13 (regarding
compulsory and permissive counterclaims) does not extend the nght of a
party to sue the United States beyond the limits established by statute.
Wnight & Miller, Federal Practice & Procedure: Civil § 1427, p. 139 (1971);
United States v. Longo, 464 F.2d 913 (8th Cir. 1972).
86a
to a counterclaim for improvements. Consequently, the
counterclaim fails if it does not qualify as a claim in recoup-
ment or set-off.
Without violating the doctrine of sovereign immunity, a
defendant may assert, by way of recoupment, any claim
arising out of the same transaction or occurrence as the
original claim, in order to defeat or reduce the Government’s
recovery. Frederick v. United States, 386 F.2d 481 (Sth Cir.
1967); See generally, Note, Governmental Immunity from
Counterclaim, 50 Colum.L.Rev. 505 (1950). Even within the
recoupment exception, however, the Government “does not
waive sOvereign immunity to counterclaims... which claim
relief in excess of or different in kind from that sought by the
Government.” Jn re Oxford Marketing Ltd. (U.S.) v. Kallen,
444 F.Supp. 399, 403 (N.D.IIl.1978). Accordingly, when the
United States sues to quiet title, the Government consents to
counterclaims by defendants seeking to quiet title in their
names. United States vy. Phillips,, 362 F.Supp.462
(D.Neb.1973).
A recoupment is the right of a defendant, “to cut down
the plaintiffs demand either because the plaintiff has not
complied with some cross obligation... or because he has
violated some duty which the law imposes upon him...
20Am. Jur.2d, Counterclaim, Recoupment and Set-off, § 1, p.
228 (1965). “It means a deduction from a money claim
whereby cross demands arising out of the same transaction
are allowed to compensate one another, the balance only to
be recovered.” /d. For example, in an ejectment action,
wherein plaintiff seeks mesne profits, the defendant may
counterclaim to recoup the value of improvements. Deakyne
v. Lewes Anglers, Inc., 204 F.Supp. 415 (D.Del.1962). In an
action by the United States to collect an income tax deficiency,
a counterdemand for recoupment of an overpayment of estate
taxes may be asserted in defense. Bull v. United States, 295
U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421 (1935).
woe risers
When the United States, however, does not seek mone-
tary relief, but only the return of property, the court lacks
jurisdiction to entertain a counterclaim for monetary relief.
te
d/a
In United States v. Ameco Electronic Corp., 224 F.Supp. 783
(E.D.N.Y. 1963), the Government brought a replevin action
to recover chattels wrongfully withheld by the defendant.
The court dismissed the defendant’s counterclaim for dam-
ages based on unjust enrichment because the claim did not
fall within the United States’ waiver of immunity for claims
in recoupment.
Recoupment and set-off. . . are restricted to a reduc-
tion or in discharge of the principle claim. To accomplish
this result, the claim of both the plaintiff and the defen-
dant must be fungible obligations which can be set-off
against each other.... The Government is not seeking
a judgment for a sum of money but is asserting title to
certain chattels. The very nature of the action makes it
impossible to reduce or discharge the claim by recoup-
ment or set-off. Jd. at 786.
Similarly, in United States v. Drinkwater, 434 F.Supp. 457
(E.D.Va.1977), the court dismissed counterclaims seeking
both damages and equitable relief because the United States
sought only to quiet its title to certain land.”*
In this case, the United States seeks only to quiet title to
land lying within the original boundaries of the Omaha Indian
Reservation. The Government does not request the payment
of damages for trespass, or for rents and profits related to the
period of defendants’ occupancy of the land.2* The United
3 See also, United States v. Thurber, 376 F.Supp. 670 (D.Vermont
1974), a mortgage foreclosure action by the United States wherein the
Court dismissed counterclaims for damages because the United States did
not seek a deficiency judgment or damages.
** The Tribe seeks the payment of damages for trespass upon Barrett
Survey lands. But that claim of the Tribe was severed and is not properly
nefore this Court in these consolidated cases. It may be that defendant’s
-laim for improvemer.ts could be asserted as an off-set to the Tribe's claim,
even though the Tnbe possesses a common-law immunity from suit which
iS interpreted similarly to the sovereign immunity of the United States.
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 1676, 56
L.Ed.2d 106 (1978): Chemehuevi Indian Tribe v. California State Board
of Equalization, 492 F.Supp. 55 (N.D.Cal.1979). [The defendants, however,
stated in their brief, on remand, that they made their counterclaim for
improvements only against the United States.] Defendant's Reply Brief,
“On ... Improvements,” at p. 11.
88a
States’ claim, therefore, does not involve a fungible obligation
against which defendant's claim for improvements may be
off set. Since the counterclaim does not constitute a claim in
recoupment, this Court lacks jurisdiction to entertain the
claim. No specific waiver of sovereign immunity exists,
express or implied, which would permit defendant’s recovery
of the value of improvements agains: the Government.
United States v. Gregory Park, Section ITI, Inc., 373 F.Supp.
317 (D.N.J.1974).
This Court is painfully aware of the record in this case
concerning the character of i
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