# Appendix — Omaha Indian Tribe v. Jackson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0975%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1090 ## Text —— \ id 6S ., | . sig} Supreme Court, U.S. i FEE 7 F T9a9 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 90 : 3 : a 5 ' ; ; : : l4a 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. l5a 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 C3 + —— EXHIBIT TRACT | BLACKBIRAO 12> seem ses Pus 1} MCBAASKA wo ft : ow moan arr 4 Land RECOM SUA. 60a 523 FEDERAL SUPPLEMENT 884 “> A . 3 = = 3 i > @ PY = 3 ws v 2 "3 w - %, . o ar ~ — . on 7 > wpa? wissoun: ervte ese © ~~ ¢ 6la U. S. ¥. WILSON 885 Cite as £25 F Sepp. 874 (1061) Tract | 8. eCaen 1928 River ° ; te ) OP StS Orn $y, erehes| - — e uy. ov wtrreem - te 62a 886 $23 FEDERAL SUPPLEMENT riarE 5 Tre 1930 River : te paws IAS te 63a Che as 523 F Sepp. 874 (1881) {y HI wih: YE aes he HE Ngee g a t A le .‘ - = 4 ° eet. Sry Ht i aes | itp ‘ et fj | : ~ ji it | 7 : Hay f ‘ aT 4 ie Ps |f erty ¢} . ? ey ct dt P 3 al lig PLaE 6 lar}: 3 at l Te 1937 River , : —! eA pelt. |, fo cae, 64a 888 523 FEDERAL SUPPLEMENT — a o # = $, " ~ = [ 7 oN SS f.- hy 4. re . : ‘ “ riare 7? Fi 8) pethoeded a vow Owe (ti eu — \ | z§ —— i a °] -f & : ; 4 ef . - \o és i A s- “y - 8 ¢ ~; : é 3 % s "\ ee be) nN) Y us NY ? 1% EXHIBI LACKBIRD j TRacT | 8 -19435 The 1944 River ~ 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 Appeal [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0975%3A2. Public record. Not legal advice.