Appendix — Wilson v. Omaha Tribe

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APPENDIX DEC SF 1978

AEE ROT AS M., CLERK |

In The

Supreme Court of the United States

October Term, 1978

No. 78-160

ROY TIBBALS WILSON, et al.,

Petitioners,

vs.

OMAHA INDIAN TRIBE, et al.,

Respondents.

No. 78-161

IOWA, et al.,

Petitioners,

vs.

OMAHA INDIAN TRIBE, et al.,

Respondents.

—

ON WRITS OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

PETITIONS FOR WRITS OF CERTIORARI FILED

JULY 28, 1978

CERTIORARI GRANTED NOVEMBER 13, 1978

-

TABLE OF CONTENTS

Pages

Docket entries in the United States District Court

for the Northern District of Iowa in United

States v. Wilson, et al., No. C 75-4024 1

Omaha Indian Tribe v. Jackson, et al., No. C-

75-4026 8

Omaha Indian Tribe v. Agricultural & Indus-

trial Investment Co., et al., No. C 75-4067 ..... 13

The above three cases as CONSOLIAAtCd occ 20

Docket entries in the United States Court of

Appeals for the Eighth Circuit in cases, Omaha

Indian Tribe, Appellant v. Wilson, et al., Ap-

pellees, No. 77-1384, and United States, Appel-

lant v. Wilson, et al., Appellees, No. 77-1387 ................ 50

Pleadings in U. S. v. Wilson, et al., No. C 75-4024

Complaint .........0. : 61

Separate answer and counterclaim of defend-

ant Otis Peterson occu. a |

Separate answer and counterclaim of defend-

ant Harold Jackson .............. 70

Answer and counterclaim of defendants, Wilson,

1 PHIL sicaisciesecandesiaenoioenseccicnstseae a7

Answer and counterclaim of defendant R.G.P., Ine. 81

Answer of defendant State of Iowa, as amended ...... 88

Plaintiff’s reply to counterclaim of defendants,

Wilson, et al. ..... SR Tobi Sn na Sack Se 94

Plaintiff’s reply to counterclaim of defendant

R. G. P., Ine. 95

Plaintiff’s answer to State of Iowa’s counterclaim 96

Plaintiff’s reply to counterclaim of defendant

Peterson. ........... SRR Eon e Dee tL i Ce 97

ii

TABLE OF CONTENTS—Continued

Pages

Plaintiff’s reply to counterclaim of defendant

INI foe cain sdanicseniotncasiicnciesnicasleneasesicinetis 99

Pleadings in Omaha Indian Tribe v. Jackson, et al.

No. C 75-4926

Complaint 100

Order filed June 5, 1975 granting plaintiffs’

applications for preliminary injunction. .......... 119

Separate answer and counterclaim of defend-

ant Jackson 126

Separate answer and counterclaim of defend-

ant Peterson _... 129

Answer of intervening defendants, Wilson, et al. ...... 131

Pleadings in Omaha Indian Tribe v. Agricultural

and Industrial Investment Co., et al., No.

C 75-4067

SRI Tia ile creat ee Na oR ote 139

Answer and counterclaim of defendants State

Of Towa, et al., AS AMOMGC oon cccccmssscsssneesseeessemenee 150

Answer and counterclaim of defendants, Wil-

son, et al. sovclimeaS adie nantes 156

Answer and counterclaim of defendants R. G. P.,

NAIR eee ee 164

Answer and counterclaim of defendants Soren-

II satiessceacocemisiecatetnaettekcteceinereonstanarineibiach 170

Reply to counterclaim of defendants, Wilson,

6 eh. Pee RD SRT Re er 176

Reply to counterclaim of defendants, Sorenson,

A ehcntthialancssmemalincudblekowmtbatens 177

Reply to counterclaim of defendants, R. G. P.,

Inc., et al. ....... : ... 182

TABLE OF CONTENTS—Continued

Order filed April 5, 1976 ruling on motions to dis-

miss motion for partial summary judgment .............. 184

Findings of fact of the District Court, dated May

2, 1977, printed as Appendix B to the petitions

for certiorari, pp. 1-51, not reprinted here .... App. B. 1

Conclusions of law of the District Court, dated

May 2, 1977, printed as Appendix B to the peti-

tions for certiorari, pp. 51-61, not reprinted

here App. B. 51

Memorandum opinion of the District Court, dated

May 2, 1977, printed as Apendix C to the peti-

tions for certiorar', pp. 1-21, not reprinted

here App. C. 1

Decree of the District Court filed May 4, 1977,

printed as Appendix D to petitions for certior-

ari, not printed here ined ta 2

Opinion and decree of the Court of Appeals for

the Eighth Circuit, filed April 11, 1978, printed

as Appendix A to petitions for certiorari, pp.

1-67, not reprinted here _......... App. A. 1

Order of the Court of Appeals denying petition

for rehearing, dated May 2, 1978 n..n.c.ccccccmssscsssemmsessnssennsee 188

Order of the Supreme Court of the United States

allowing certiorari in Case No. 78-160, Wilson,

et al. v. Omaha Indian Tribe, et al., limited to

Questions 2 and 3 presented by the petition .............. 189

Order of the Supreme Court of the United States

allowing certiorari in Case No. 78-161, Lowa,

et al. v. Omaha Indian Tribe, et al. limited to

Questions 1 and 4 presented by the petition .............. 189

Land ownership map of Blackbird Bend area (por-

tion of Tribe’s Ex. 78) reproduced as Appendix

F to petitions for certiorari, not reprinted here App. F

iv. Vv.

TABLE OF CONTENTS—Continued

Pages TABLE OF CONTENTS—Continued

An Act to regulate trade and intercourse with the _— Pages

Indian tribes, and to preserve peace on the obinson .. 257

frontiers, approved June 30, 1834, 4 Stat. 729 ...... 190 MeQuivey A. Q57

Excerpts from transcript of testimony included in | SET ss 257

Appendix pursuant to designation by counsel , ee le A

for the Omaha Indian Tribe GPE tal al eRe cane ae Oe anne aT Eile EHRE 258

Witnesses: Hallberg —_ ; oa

Baur M. Cork 204 | Robinson ......... Sad eS cation a, 258

ec cuedieeatnnantannanin ae : Exhibits included in Appendix pursuant to desig-

nation by Counsel for the Omaha Indian Tribe:

Raul McQuivey 221 : GPR

is Iowa’s Ex. M-8, Quitclaim deed from Lakin

June Geadelmann . | ss oe we 222 eases 958

I paced heath icicasnciesinctnneacedenesniaenibiieteeeenecvoneiadiaind 223 | Iowa’s Ex. N-3, Quitclaim deed from Peter-

I rc ounmeael 225 Sr ae Geer ee a ee 962

Foarold Wiese cc ccnccccceenene 231 Included in Appendix pursuant to designation by

counsel for United States:

Harold Daryl Jackson ..0....cccceccceeee " 233 ap Ai

Tribe’s Exhibit 7, Documents of selection of

fe ae 233 Blackbird Hills area as Omaha Indian Res-

Chocks B. leks 233 ok) Herraeion .. 265

Ross Willey ...... 236

George W. Prichard 236

Joe Kirk, Jr... 238

Merle Cunt r nccececceeesessc ss 238

George R. Hallberg... 939

Ea ee 243

Mrs. A. W. English 243

Alan G. Loftis 243

John F,. Kennedy ; 243

Harold M. Sorenson 256

UNITED STATES DISTRICT COURT

DOCKET ENTRIES

ra’

Ww

C 75-4024

fa’

Vv

UNITED STATES OF AMERICA,

Plaintiff,

vs.

WILSON, Roy Tibbals; LAKIN, Charles G.; LAKIN,

Florence; R.G. P. INCORPORATED, an Iowa Corpora-

tion; JACKSON, Harold; PETERSON, Otis; TRAVEL-

ERS INSURANCE COMPANY and THE STATE OF

IOWA,

Defendants.

CAUSE

Complaint to quiet title and for Injunctive relief.

ATTORNEYS

For Plaintiffs— For Defendants—

Roy Tibbals Wilson,

R. G. P. Incorporated,

Harold Jackson and

\ Otis Peterson

on Smith

3535 Harney Street

Omaha Nebraska 68131

Thomas R. Burke

Suite 1900

First National Center

Omaha, Nebraska 68102

Evan L. Hultman

Robert L. Sikma

Jack W. Peters

501-511 Park Bldg.

Council Bluffs, Iowa 51501

Peter J. Peters

233 Pearl Street

Council Bluffs, Iowa 51501

For Defendants—

Lakin

Philip J. Willson

301 Park Bldg.

Council Bluffs, lowa 51501

12-8-75 State of Iowa

Attorney General

Bennett Cullison, Jr. State Capitol

Harlan, Ia. 51537 Des Moines 50319

Monona County Attorney

Stephen W. Allen

Onawa 51040

Alan Loftis Travelers Ins. Co.

Box No. 315

Seward, Nebraska 68434

(Jan. 1976)

Statistical Cards: Card JS-5 mailed 5-19-75 and Card

JS-6 mailed 5-20-77.

I, the undersigned Clerk of the United States District

Court for the Northern District of Lowa, do certify that

the foregoing is a true copy of an original document re-

maining on file and record in my office.

WITNESS my hand and seal of said Court this 16

day of November, 1978.

K. W. Fuelling, Clerk

(SEAL) By: /s/ D. Henry, Deputy

5-22

~

3

Proceedings

Complaint To Quiet Title and For Injunctive

Relief.

Motion For Preliminary Injunction.

Brief In Support of Motion For Preliminary

Injunction.

Resistance To Plaintiff’s Motion For Pre-

liminary Injunction and

Motion For Preliminary Injunction and

Brief in Support of Resistance and Motion

by Defendants Roy Tibbals Wilson, R. G. P.

Incorporated, Harold Jackson and Otis Pe-

terson.

Order setting hearing on Motions for 5-28-75

at 2:30 P. M.

Supplement to memorandum of Defts. Wil-

son et al in support of their resistance to

pltf.’s motion for preliminary injunction.

Pltf.’s supplementary memorandum in sup-

port of motion for prel. injunction.

Official s/h notes of conference (separate

file) (transcript rec’d. on)

Affidavits of U. S. (Cline, Robinson, Swan-

son, Corke & Veeder).

Summons, w/Marshal’s returns. (Fees:

$45.72)

Affidavits of U. S. (Cline, Robinson, Swan-

son, Corke).

Omaha Tribe’s application to dismiss or hold

in abeyance.

Supplemental memorandum of Defts. Wil-

son, et al.

7-16

16

17

State of Iowa’s memorandum brief in sup-

port of special appearance.

Order denying Defts. application for pre-

liminary injunction & granting Pltfs. appli-

cations; all Defts. enjoined & restrained from

interfering with use & occupancy of lands,

and from prosecuting Monona District Court

Action until final judgment entered herein;

Pitfs. to deposit with Clerk net profits re-

ceived from crops together with report of

receipts & disbursements. (OB 18-200).

Separate answer & counterclaim of deft.

Jackson.

Answer of defts. Tibbals Wilson, Lakins.

Pitf.’s Response to Omaha Tribe’s applica-

tion to dismiss or hold in abeyance.

Separate answer & cou.terelaim of deft. Pe-

terson.

Answer and Counterclaim of Deft. RGP.

Answer of Deft. State of Iowa.

Order denying Motion of Omaha Tribe filed

on 6-3-75 for dismissal. (OB 19-11).

Defts. Wilson & Jackson application for or-

der directing reimbursement of winter wheat

crop expenses, w/affidavit.

Motion by Defendant State of Iowa For Re-

lief From Temporary Injunction.

Brief of Defendant State of Iowa in Support

of Motion.

Resistance by Tribe & USA to application for

order directing reimbursement of winter

wheat crop expenses.

Plitf.’s Response to State of Iowa’s Motion

for relief from preliminary injunction.

7-19

8-12

10- 7

30

31

32

43

44

5

Application For Order Directing Reimburse-

ment of Winter Wheat Crop Ex.

Order that Defts. Wilson, Jackson, RPG.,

Ine. & Peterson shall be reimbursed by Tribe

for expenses incurred in planting. (OB 19-

23).

Pltf.’s Reply to counterclaim of Deft. Jack-

son.

Plif.’s Reply to counterclaim of Defts. Wil-

son & Lakins.

Pitf.’s Reply to counterclaim of Deft. Peter-

son.

Pitf.’s Reply to counterclaim of Deft. RGP,

INC.

Tribe’s Application to Court for Relief.

Tribe’s Report & accounting to the Court.

Defts. Wilson & Jackson resistance to appli-

cation to the court for relief.

Application for Payment of winter wheat

crop expenses by RGP, INC. & OTIS PE-

TERSON.

Memorandum In Support Of Omaha Tribe’s

Application For Relief.

RGP, Ine. & Otis Peterson application for

change of possession of land for farming

purposes.

Omaha Tribe brief to the court concerning

question of jurisdiction.

Defts. Wilson & Jackson application for pos-

session for farming purposes for 1976 crop

year. (separate file)

Answer To “Application For Change Of

Possession Of Land For Farming Purposes”

and Motion For Trial On The Merits.

Order—motion for relief from temporary in-

junction denied; plaintiffs’ motion for equit-

able relief denied.

6

Memorandum in Support of Defts. Wilson &

Jackson’s Application for Possession & Re-

quest for Ora! Argument.

Motion For Trial on the Merits; For Dam-

ages; and Answer to “Application For Pos-

session For Farming Purposes For The 1976

Crop Year”.

Order On Pending Motions.

Defts. Wilson & Jackson application for per-

mission to harvest corn crop.

Affidavit of Raymond L. Huber (separate

file).

Tribe’s resistance to application to harvest

corn.

Omaha Tribe’s Compliance With Court’s Or-

der Concerning Wheat.

Supplemental Compliance With Court’s Or-

der Concerning Wheat.

Response of U.S. to Court’s Order of 10-16-

75.

Response of Wilson & Jackson to Court’s Or-

der of 10-16-75.

Application To Require Plaintiffs To Mark

Court-Imposed Boundary and For Further

Relief.

Notice of appearance of Bennett Cullison for

Deft. State of Iowa.

Order on Motions: Ruling for payment of

winter wheat crop expenses reserved; per-

mission to harvest corn crop denied as moot;

motion to require pltfs. to mark court-im-

posed boundary granted, and U. S. directed

to commence a survey for purpose of mark-

ing said boundary; final pre-trial conference

set for 2-10-76 at 9:00 A.M., Sioux City.

(OB19-108).

1-21

68

69

71

7

Order setting final pre-trial conference on

2-10-76 at 9 A. M.

Motion To Dismiss by Defendant State of

Iowa.

Motion For Continuance. (Final Pretrial

Conference. )

Omaha Indian Tribe’s Motion To Consoli-

date, Motion For Separate Trial and Re-

sponse To Motion Of Harold Jackson.

Deft. State of Iowa’s Application to modify

temporary injunction. (Oral argument re-

quested. )

Request To Withdraw Motion To Dismiss.

(State of Iowa Filed 12-22-76).

Motion For Continuance. (State of Iowa).

Defts. State of Ia. & Cons. Comm. Resistance

to motion to consolidate (Oral argument re-

quested).

Defts. Wilson & Lakin Request for produc-

tion of documenis, ete., under Rule 34.

Defts. Wilson & Lakin Interrogatories to

Pitf.

Motion To Have Made Permanent The 1867

Barrett Meander Survey Line Based Upon

Completed and Accurate Dependent Resur-

vey and Monumentation of That Line in

Keeping with This Court’s Order of Decem-

ber 15, 1975.

Government’s Request for Extension of Time

to survey area as per Order of 12-15-75.

Order on Motions: Cases No. C75-4024 and

4026 and C 75-4067 are consolidated; final

pretrial conference continued until further

order of court; Deft. State of Iowa’s Motion

to withdraw motion to dismiss granted. (OB

19-128)

g

UNITED STATES DISTRICT COURT

DOCKET ENTRIES

C 75-4026

January 26, 1976

OMAHA INDIAN TRIBE, organized Indian Tribe pur-

suant to Act of June 18, 1934 (48 Stat. 984) as amended,

Plaintiffs,

Vs.

JACKSON, Harold; PETERSON, Otis; DISTRICT

COURT IN AND FOR MONONA COUNTY, IOWA,

*intervening defts. added 8-25-75

Roy Tibbals Wilson and Charles Lakin,

Defendants.

CAUSE

Complaint for Injunction, for stay of State Court

proceedings and Other Relief.

ATTORNEYS

For Plaintiff— For Defendant—Jackson.

John T. O’Brien *Thomas R. Burke

916 Grandview Boulevard Suite 1900

Sioux City, Iowa 51101 One First National Center

Omaha 68102

William H. Veeder

4808 West Braddock Rd. ‘*Jack W. Peters

Alexandria, Va. 22311 501-11 Park Bldg.

Council Bluffs 51501

Monona Co. District Court

*Defts. Wilson & Lakin Stephen W. Allen

added 8-26-75: 718 Iowa Avenue

1040

Edson Smith —

35385 Harney Street Peterson

Omaha 68131 Peter J. Peters

pius Tom Burke & 233 Pearl Street

Jack Peters as attorneys. Council Bluffs 51501

Statistical Cards: Card JS-5 mailed 5-20-75 and Card

JS-6 mailed 5-20-77.

I, the undersigned Clerk of the United States District

Court for the Northern District of Iowa, do certify that

the foregoing is a true copy of an original document re-

maining on file and record in my office.

WITNESS my hand and seal of said Court this 16

day of November, 1978.

K. W. Fuelling, Clerk

(SEAL) By: /s/ D. Henry, Deputy

Date Nr. Proceedings

1975

5-20 1 Complaint For Injunction, For a Stay of

State Court Proceedings and Other Relief.

2 Brief In Suppurt Of The Position Of The

Omaha Tribe of Nebraska. (Summons Is-

sued and Delivered to Marshal.)

5-22 3 Order setting time for hearing on motions

on 5-28-75 at 2:30 p.m.

5-28 4 Defts. resistance to application for prelim-

inary injunction.

o

bo

@

qr

Defts. Jackson & Peterson motion for pre-

liminary injunction.

5-28 6 Memorandum of Defts. in support.

5-28 7 Summons, w/Marshal’s services on 5-21 &

5-23-75. (Fees: $45.48).

5-28 8 Official s/h notes of conference. (separate

file) (transcript ree’d.) .

6- 3 9 Deft. District Court of Iowa Resistance to

application for stay of State Court Proceed-

ings.

10

11

10

Memorandum of points and authorities in

support of title, possession & occupancy of

U.S., Trustee for Omaha Indian Tribe.

Order denying Defts. applications for pre-

liminary injunction & granting Pltfs. appli-

cations; all Defts. enjoined & restrained from

interfering with use & occupancy of lands,

and from prosecuting Monona District Court

action until final judgment entered herein;

Pitf.s to deposit with Clerk net profits re-

ceived from crops together with report of re-

ceipts & disbursements. (OB 18-200).

Separate Answer & Counterclaim of Deft.

Jackson.

Separate Answer & Counterclaim of Deft.

Peterson.

Deft. Wilson & Jackson’s application for or-

der directing reimbursement of winter wheat

crop expenses, w/affidavit attached.

Motion of Roy Wilson & Chas. Lakin to in-

tervene as Defts., w/copy of proposed An-

swer attached.

Memorandum of intervening Defts. in sup-

port of motion.

Resistance by Tribe & USA to application

for order directing reimbursement of winter

wheat crop expenses.

Defts. RGP INC. & OTIS PETERSON ap-

plication for order directing reimbursement

of winter wheat crop expenses.

Order that Defts. Wilson, Jackson, RGP,

Ine. & Peterson be reimbursed by Tribe for

expenses in planting. (OB 19-23).

Order granting Wilson & Lakin’s Motion to

intervene.

Answer of intervening Defts. Wilson & Lak-

in.

10- 7

10- 7

10- 8

10-16

10-17

10-29

10-31

11-06

11-06

30

36

37

11

Tribe’s Application to Court for Relief.

Tribe’s Report & accounting to the Court.

Defts. Wilson & Jackson Resistance to ap-

plication to court for relief.

Application of RGP, INC. & Otis Peterson

for payment of winter wheat crop expenses.

RGP, INC. & Otis Peterson application for

change of possession of land for farming

purposes.

Omaha Tribe Brief to the Court concerning

question of jurisdiction.

Application for possession for farming pur-

poses for 1976 crop year. (See No. 43 in

Case C 75—4024.)

Order—motion for relief from temporary in-

junction denied; pltffs’ motion for equitable

relief denied.

Memorandum in Support of Defts. Wilson &

Jackson’s Application for Possession and Re-

quest for Oral Argument.

Motion For Trial on the Merits; For Dam-

ages; and Answer to “Application For Pos-

session For Farming Purposes For The 1976

Crop Year.”

Order On Pending Motions.

Defts. Application for permission to harvest

corn crop.

Affidavit of Raymond L. Huber.

Tribe’s resistance to application to harvest

corn.

Omaha Tribe’s Compliance With Court’s

Order Concerning Wheat.

Supplemental Compliance With Court’s Or-

der Concerning Wheat.

Response of U.S. to Court’s Order of 10-16-

75.

11-12

11-21

12-17

12-24

12-31

1976

1-14

1-21

1-26

39

40

41

42

43

46

47

48

12

Response of Wilson & Jackson to Court’s Or-

der of 10-16-75.

Applieation To Require Plaintiffs To Mark

Court-Imposed Boundary and For Further

Relief.

Order on Motions: Ruling for payment of

winter wheat crop expenses reserved; per-

mission to harvest corn crop denied as moot;

motion to require Pltfs. to mark court-im-

posed boundary granted, and U. S. directed

to commence a survey for purpose of mark-

ing said boundary; final pre-trial conference

set for 2-10-76 at 9:00 A. M., Sioux City. (OB

19-108).

Order setting final pretrial conference on

2-10-76 at 9:00 A.M.

Motion For Continuance. (Final Pretrial

Conference. )

Omaha Indian Tribe’s Motion To Consoli-

date, Motion For Separate Trial and Re-

sponse To Motion Of Harold Jackson.

Defts. Wilson & Lakin Request for produe-

tion of documents, ete. under Rule 34.

Defts. Wilson & Lakin interrogatories ad-

dressed to Pltf.

Motion To Have Made Permanent the 1867

Barrett Meander Line Survey Based Upon

Completed and Accurate Dependent Resur-

vey a Monumentation of that Line in Keep-

ing with This Court’s Order of December 15,

1975.

Order on Motions: Cases No. C75-4024 and

4026 and (C75-4067 are consolidated; final

pretrial conference continued until further

order of court; Deft. State of Iowa’s Motion

to withdraw motion to dismiss granted. (OB

19-128).

13

UNITED STATES DISTRICT COURT

DOCKET ENTRIES

January 26, 1976

C 75-4067

OMAHA Indian Tribe, Treaty of 1854 with the U.S. (10

Stat. 1043), Organized pursuant to the Act of 6/18/34

(48 Stat. 954; 25 USC 476) as amended,

Plaintiffs,

Vs.

TRACT I—BLACKBIRD BEND ARBA, ete.; TRACT

II—MONONA BEND AREA, ete.; and TRACT ITI—

OMAHA MISSION BEND AREA,

Defendants.

CAUSE

(Private) U.S.C. 28-1331 Action to quiet title.

ATTORNEYS

For Plaintiff:

John T. O’Brien

916 Grandview Blvd.

Sioux City, lowa 51101

William H. Veeder

4808 West Braddock Rd.

Alexandria, Va. 22311

For Defendant:

Lloyd Fletcher

Ronald E. Runge

436 Davidson Bldg.

Sioux City, IA 51101

Wiley Mayne

For Defendants: 300 Commerce Bldg.

Darrell L., Harold, Harold §joux City

M. & Luea Sorenson

Maurice B. Nieland

300 Toy Bank Bldz.

Sioux City, [A 51101

For Defendants:

Hazel Jacobson, Fred

Sanders, Maurice Benja-

min, Rosalie Sanders,

Richard & Jean & George

Ruth, Ross Willey, Willa-

day Farms, W. W. & Arie

Virtue, Vincent Willey,

Arthur Orr, John Lund,

Lloyd Fletcher, Cleo Cox,

Herbert Nelson, Benjamin,

Amena Ruth, Ruth Lund,

Robert Orr

14

(Honorable Andrew W. Bogue, U.S. District J udge

R. 318 Fed. Bldg. & U. S. Courthouse

515 - 9th St., Rapid City, So. Dak. 57701)

(see attached sheet.)

I, the undersigned Clerk of the United States District

Court for the Northern District of Iowa, do certify that

the foregoing is a true copy of an original document re-

maining on file and record in my office.

WITNESS my hand and seal of said Court this 16

day of November, 1978.

K. W. Fuelling, Clerk

(SEAL) By: /s/ D. Henry, Deputy

1975

10-06 1 Complaint to Quiet Title for Immediate Ac-

cess, for Permanent Injunction Order for

Quiet Possession, and for Damages (Sum-

mons to Marshal for Service.)

10-22 2 Appearance of Ronald E. Runge for Lloyd

Fletcher.

10-23 3 Pltf.’s Application to the Court for Relief.

10-28 4 Stipulation For Extension of Time To Move

or Plead.

Order approving stipulation & enlarging time

to plead.

10-31 6 Motion To Enlarge Time To Move or An-

swer. (Defendants Darrell, Harold, Harold

M. and Luea Sorenson.)

11-10 7 Motion For More Definite Statement (De-

fendant Northern Natural Gas Co.)

8 Brief in Support of Motion For More Def-

inite Statement.

11-11 9 Order granting Defts. Sorensons until 12-3-

75 to move or plead.

10-29

or

11-12

11-13

11-13

11-21

11-24

11-25

11-26

12- 1

12- 1

12- 3

12- 3

10

11

25

15

Stipulation or Time For Defendant Mid-

American Pipeline Company To Move or

Plead.

Motion of Deft. Harold Jackson for Order of

dismissal. (Memo. attached).

Order granting Deft., Mid-American Pipe-

line, until 12-1-75 to move or plead.

Application For Enlargement of Time To

Move or Plead.

Stipulation For Extension For Defendant

James Brooks Benson To File Answer.

Appearance (pro se) for Defendant Ernest

L. Olson.

Answer (pro se) by Defendant Ernest L.

Olson.

Objection To Application For Enlargement

of Time.

Order On Motions For Extension of Time

to Move or Plead (12-10-75).

Stipulation that Deft. AT&T be granted ex-

tension until 12-10-75 to answer.

Motion of Roy Tibbals Wilson, Deft.

Memorandum in Support of Motion of Deft.

Stipulation For Extension of Time to Move

or Plead.

Stipulation For Extension of Time To Move

or Plead.

Order granting Defts. AT&T; Jacobson, Cox,

Fletcher, Peterson, Craford & Bentley until

12-10-75 to move or plead. Deft. Mid-Amer-

ica given until 12-15-75.

Defts. Sorenson’s Motion for more definite

statement.

12- 8

12-10

12-30

16

Reasons and authorities in support of mo-

tion.

Deft. Benson Motion for extension of time to

file answer.

Motion Of Defendants RGP and Otis Peter-

son.

Stipulation For Extension of Time To Move

or Plead.

Deft. Iowa Publie Service for More definite

statement, w/Brief attached.

Order granting Deft. Benson until 12-15-75

to move or plead.

Answer of Deft. Travelers Insurance Com-

panies.

Order granting Defts. State of Iowa & State

of Iowa Conservation Commission until 12-

15-75 to move or plead.

Application for enlargement of time (for

defts. represented by W. Mayne).

Motion For Ingress And Egress In and To

Blackbird Bend Tract. (Barrett Survey).

Motion of Deft. Fletcher for order to plain-

tiff to file a more specific statement.

Stipulation Enlarging Time. (Def. State of

lowa).

Motion To Dismiss by State of Iowa and

Towa State Conservation Commission.

Motion For Enlargement of Time To Move

or Plead.

Application For Approval Of Costs.

12-31

1976

1-12

1-13

1-15

{-21

41

17

Statement of Reasons And Authorities In

Support Of Application or Approval Of

Costs.

Defts. Wilson & Jackson Resistance to Mo-

tion for ingress & eg ess.

Response To Plaintiff’s Motion For Ingress

and Egress by Defendants Harold Sorenson,

Harold M. Sorenson, Luea Sorenson and

Darrell L. Sorenson.

Omaha Indian Tribe’s Motion To Consoli-

date, Motion For Separate Trial and Re-

sponse To Motion Of Harold Jackson.

Request To Withdraw Motion To Dismiss.

(State of Iowa filed 12-2).

Answer of Defendants State of Iowa and

Iowa Conservation Commission.

Defts. Jacobson, Sanders et al. Statement in

opposition to motion to consolidate for trial

& in opposition for separate trial.

Defts. State of Ia. & Cons. Comm. Resistance

to motion to consolidate (Oral Argument re-

quested).

Answer of Deft. Regina Marie Torticilli.

Deft. Torticilli Interrogatories to Pltf.

Application For Enlargement of Time to

Move Or Plead.

Amendment To Statement In Opposition To

Motion To Consolidate.

Motion To Have Made Permanent The 1867

Barrett Meander Line Survey Based Upon

Complete and Accurate Defendant Resurvey

and Monumentation of That Line in Keeping

With This Court’s Order of Decembe. 15,

1975.

1-23

1-26

4.

cr

4-14

4-16

54

59

18

Pitf.’s Motion to add defendants.

Order on motions: Pitf.’s unresisted motion

for equitable relief filed 10-23-75 - denied; re-

sisted motions to dismiss filed by Deft. Jack-

son on 11-13-75, Deft. Wilson on 12-1-75, & by

Defts. RGP & Peterson on 12-8-75 - denied;

unresisted motion to dismiss filed by Defts.

State of Iowa & Conservation Commission

& unresisted motion filed 1-5-76 to withdraw

motion to dismiss—granted; motions to make

more definite & certain filed by Deft. North-

ern Gas on 11-10-75, by Deft. Sorensons on

12-3-75, by Deft. IPS on 12-8-75, by Deft.

Fletcher on 12-17-75—denied; Case consoli-

dated with No. C75-4024 & 4026; Ruling on

motion for ingress & egress reserved; Mo-

tion for approval of costs granted as to cost

of preparing an abstract & its continuance &

ruling reserved on remainder of motion;

Defts. Benjamin et al given until 1-30-76 to

move or plead. (OB 19-129).

Order on various motions: including Item

No. 7 severing Case No. 4067 from consoli-

dated cases with respect to issues of damages

and all issues concerning lands not within

subject res. of Cases No. 75-4024 & 4026. (OB

19-161).

Stipulation that Deft. Agricultural has until

4-24-76 to move or plead.

Defts. Wilson & Jackson resistance to reap-

plication for access.

Brief in support of resistance.

Pitf. & Defts. Stipulation to plead by 4-23-76.

Order granting Defts. until 4-23-76 to move

or plead.

4-23

6-11

62

65

70

71

72

73

74

19

Answer, Counterclaim and Jury Demand by

Defts. (Mayne).

Motion for judgment on the pleadings of

Deft. Agricultural, ete.

Affidavit of F. John Roost in support of

motion for summary judgment of Deft. Ag-

ricultural.

Brief in support of motion for judgment on

the pleadings & motion for summary judg-

ment.

First Set of Interrogatories to Pltfs. by

Deft. Travelers Ins.

Tribe’s Reply to counterclaim and response

to demand for jury trial.

Tribe’s Motion to Amend. (add defendants).

Defts. (Mayne) resistance to motion to deny

(response) demand for jury trial.

Tribe’s resistance & response to Motion for

judgment on pleadings & motion for sum-

mary judgment.

Pltf.’s Motion to dismiss as to certain named

defendants: (Disclaimers filed by: Hazel

Jacobson; Elmer Swan; Emily Blair and

Frances Goodman).

Pitfs. (Tribe) Answer to first set of inter-

rogatories of Deft. Travelers Insurance Com-

pany.

Reply Brief of Agricultural ete. to “Resist-

ance & Response of Tribe to Motion for

judgment on pleadings & motion for sum-

mary judgment”.

Notice of Appearance as Counsel of Record

for Omaha Indian Tribe of William H. Veed-

er, Alexandria, Virginia.

9. 3

9. 9

87

20

Response To “Reply Brief” of Agricultural

& Industrial Investment Company Dated

June 7, 1976.

Answer & Counter-claim of Defts. RGP, Inc.

& Otis Peterson.

Order grantiuy Motion of Pltf. Tribe filed

5-7-76 to add certain parties as Defendants.

Counsel for Tribe directed to notify these

Defts. of conference scheduled on 8-6-76. (OB

20-13).

Deft. Travelers Insurance Co.’s Motion for

summary judgment on the issue of damages.

Travelers Brief statement in support of its

motion.

Stipulation by Omaha Tribe & Deft. Monona

County that Deft. may have until 9-2-76 to

move or plead.

Answer, Counterclaim and Jury Demand of

Mobil Pipe Line Company.

Motion for leave to file amendment to An-

swer of Defts. State of Iowa & Iowa Con-

servation Commission. (copy attached).

Answer and counterclaim of Deft. Monona

County.

Answer of Jim MecUuire, Referee.

Answer, Counterclaim & Jury Demand of

Defts. Weidner, Burns, Loraditch, Brennan,

Nelson, Hickmans, Fender, Queens & Clark.

Motion for leave to file amendment to An-

swer of Defts. Boulden & Stokley (copy at-

tached).

Tribe’s Opposition to Motion for Summary

Judgment by the Travelers Insurance Com-

pany.

9-20

9-27

10-12

10-20

1977

2-11

3-10

3-17

3-17

88

89

90

91

92

93

94.

95

96

97

98

99

100

101

21

Deft. Mobile Pipe Line Co.’s First Set of

Interrogatories to Pitt.

Tribe’s Reply to counterclaim of Monona

County.

Tribe’s Request to deny motion for amend-

ment to answer of Defts. State of Iowa &

Conservation Commission & reply to counter-

claim.

Tribe’s Response to interrogatories pro-

pounded by Deft. Mobil Pipe Line Co.

Tribe’s reply to counterclaim of Mobil Pipe

Line.

Tribe’s reply to counterclaim Defts. Weidner,

et al.

Tribe’s reply & motion to strike demand for

jury trial by Deft. Mobil Pipe Line.

Tribe’s reply & motion to strike demand for

jury trial by Defts. Weidner et al.

Disclaimer by Deft. Monona County to land

within the Barrett Survey Area of Blackbird

Bend Tract, and Motion for Dismissal from

that action. (also No. 234 in consolidated

case)

Answer of Estate of Maude B. Hudgel, de-

ceased.

Second Set of interrogatories to Pltf. from

Iowa Public Service.

Response of Tribe to Second Set of interrog-

atories from IPS.

Motion For Partial Summary Judgment by

deft. Lowa Public Service

Brief In Support of Motion For Partial Sum-

mary Judgment.

22

3-28 102 Tribe’s Memorandum in response to Deft.’s

Motion for Summary Judgment & Request

for denial.

3-30 103 Deft. IPS Reply to Memorandum & response

to Deft.’s Motion for summary judgment.

7-8 104 Order on motion of 6-3-76 to dismiss Defts.

Hazel I. Jacobson, Elmer W. Swan, Emily S.

Blair and Frances J. Goodman: no resist-

ance filed—hereby Ordered that Motion is

Granted. (OB 21-23)

ATTORNEY’S FOR DEFENDANTS

Date Attorney Defendants

1975

10-22 Ronald E. Runge Lloyd Fletcher

436 Davidson Bldg.

Sioux City, Iowa 51101

10-28 Wiley Mayne Hazel I. Jacobson

300 Commerce Bldg.

Sioux City, Iowa 51101 Fred Sanders

Maurice Louis Benjamin

Rosalie Sanders

(on 9-9-76) Richard A. Ruth

Dorothy Weinder Ross O. Willey

Virginia Burns Willaday Farms, Inc.

Rose Loraditch W. W. Virtue

Mary Brennan Ariel Virtue

Phylis Nelson Vincent R. Willey

Leslie Hickman Arthur Orr

Shirley Fender John H. Lund

Robert Hickman Lloyd Fletcher

Dorothy Queen Cleo Cox

Norman Queen

Herbert Nelson Benjamin

Charlotte J. Clark Amena Ruth

Ruth J. Lund

Robert Orr.

1l1- 3

11-10

11-12

11-13

23

Maurice B. Nieland Darrell L. Sorenson

300 Toy National Bank Bldg.

Sioux City, Iowa 51101 Harold Sorenson

Harold M. Sorenson

Luea Sorenson

Philip Willson Northern Natural Gas

301 Park Bldg. Company.

Council Bluffs, Iowa 51501

P. L. Nymann Mid-American

383 Orpheum Electric Building Pipeline

Sioux City, Iowa 51101 Company.

Lyman L. Larsen Harold Jackson

1900 One First National Center

Omaha, Nebraska 68102

&

Jack W. Peters

501 Park Bldg.

Council Bluffs 51501

(Pro se) Ernest L. Olson

10417 Peoria Ave.

Sun City, Arizona

E. F. Barnicle, Jr. American Telephone

T. F. Wobker & Telegraph Company.

811 Main St.

Kansas City, Missouri 64141

Jack W. Peters Roy Tibbals Wilson

Edson Smith

3535 Harney St., Omaha 68131

George F’. Madsen James Brooks Benson

Charles R. Wolle

1109 Badgerow Bldg., S. City 51101

Peter J. Peters RGP, Inc. and

233 Pearl Street Otis Peterson

Council Bluffs, Iowa 51501

12- 8

12- 8

12-10

1976

1-15

9- 2

8-20

24

Bennett Cullison State of Iowa and

Harlan, Iowa 51537 State of Iowa

Conservation Commission.

Dewie J. Gaul Iowa Public

383 Orpheum Elec. Bldg. Service Co.

Sioux City 51101

Lowell C. Kindig The Travelers

Michael W. Eliwanger Insurance

300 Toy National Bank Bldg.

Sioux City 51101

Theodore T’. Duffield Regina Marie

729 Insurance Exchange Bldg. Torticilli

Des Moines 50309

Stephen W. Allen Monona County

Monona County Courthouse Attorney

‘Onawa, Iowa 51040

Steven A. Carter Jim McGuire, Referee

215 Benson Bidg. Estate of Maude

Sioux City 51101 B. Hudgel

Robert R. Eidsmoe Mobil Pipe Line

200 Home Federal Bldg. Company

P. O. Box No. 3086

25

Notice of Appeal by Plaintiff May 9, 1977.

Notice of Filing Petition for Certiorari 7-28-78.

Consolidated Cases No. C 75-4024 & 4026 and CO 75-4067

on January 26, 1976.

SUPREME COURT DOCKET

UNITED STATES DISTRICT COURT

No. C 75-4024

UNITED STATES OF AMERICA,

Plaintiff,

Vs.

ROY TIBBALS WILSON, et al.,

Defendants.

No. C 75-4026

OMAHA INDIAN TRIBE, ete.,

Plaintiff,

vs.

HAROLD JACKSON, et al.,

Defendants.

No. C 75-4067

OMAHA INDIAN TRIBE, ete.,

Plaintiff,

Vs.

AGRICULTURAL & INDUSTRIAL INVESTMENT

COMPANY, et al.,

Defendants.

I, the undersigned Clerk of the United States District

Court for the Northern District of Iowa, do certify that

the foregoing is a true copy of an original document re-

maining on file and record in my office.

26.

WITNESS my hand and seal of said Court this 16

day of November, 1978.

(SEAL)

Date No.

1976

1-36 71

72

73

1-27 74

1-29 75

1-30 76

2-4 7

25 7

79

80

81

K. W. Fuelling, Clerk

By: /s/ D. Henry, Deputy

Proceedings

Order on Motions & Consolidating Cases.

(No. C 4024 & 4026).

Defts. Wilson & Jackson Resistance to Tribe’s

Motion to have made permanent a survey line

as a boundary line. (all 3 cases).

Pitf.’s Motion to dismiss as to certain named

defendants. (No. C75-4067) (30 signed dis-

claimers in separate file).

Pitf.’s Motion to amend—names of Glen &

Grace Swan to be removed from list of dis-

claimers. (No. C75-4067).

Answer and Counter-Claim of Defendant

Lloyd Fletcher (4067). |

Defts. (Mayne) application for enlargement

of time.

Pitf.’s Motion to dismiss as to certain named

defendant (Letha Jenkins) (No. C75-4067)

(Disclaimer filed).

Answer of Defts. Wilson, Jackson & Lakins

(No. 4067).

Answer of Deft. Northern Natural Gas Com-

pany (No. 4067).

Interrogatories to Plitf. from Northern Nat-

ural Gas Co.

Request for Production from Deft. Northern

Natural Gas.

2-10

2-11

2-12

2-18

2-18

82

Sa

87

91

92

27

Order granting (Mayne) Defts. until 2-19-76

to move or plead (final extension).

Answer & Counterclaim of Deft. IPS (No.

4067).

Interrogatories to Pltf. from IPS.

Request for production from Deft. IPS.

Motion to dismiss as to certain named deft.

(James Brooks Benson) (disclaimer filed).

Report of Omaha Tribe on farming proced-

ures (No. 4024 & 4026) check received for

$24,585.79.

Order on motions; Deft. Towa’s filed 1-6-76

to modify temporary injunction; Plitf. Tribe’s

filed 1-21-76 to make permanent resurvey;

Pltf. U.S. filed 1-22-76 for extension to com-

ply with court order; Pltf. Tribe’s to dismiss

certain defts. ORDERED motion to make

permanent resurvey denied; motion for ex-

tension of time granted; motions to dismiss

granted ; motion for modification of tempo-

rary injunction granted. Pltf. Tribe enjoined

& restrained from any further alterations to

lands character within court’s previous in-

Junctive decree to which State of Iowa claims

an interest (certain prohibited alterations in-

cluded) (OB 19-139).

Answer and Counterclaim of Defendants

Harold, Harold M., Luea and Darrell L. Sor-

enson (No. 4067).

First Amendment To Answer and Counter-

claim of Iowa Public Service Co. (No. 4067).

Deft. IPS Demand for trial by ju No.

“en. y jury (No

Tribe’s Reply to request for production from

Deft. IPS (No. 4067).

93

2-19 98

2-19 99

2-19 100

101

102

103

104

2-23 105

28

Tribe’s Response to request for production

of documents by Defts. Wilson & Lakin (No.

4026 & 4067).

Tribe’s Reply to “First Amendment to an-

swer & counterclaim of IPS” Deft. (No.

4067).

Trive’s Reply to answer & counterclaim of

Deft. Fletcher (4067).

Tribe’s Response to resistance of motion “to

have made permanent” a survey line as filed

by Defts. Wilson & Jackson. (all 3).

Tribe’s Response to interrogatories presented

by Defts. Wilson & Lakin (No. 4026).

Order granting Motion to dismiss as to Deft.

James Brooks Benson (No. 4067) (OB 19-

142).

Order extending time to comply with C.O.

of 12-15-75 as to expenses to 2-23-76. U.S.

granted until 3-8-76 to respond to interroga-

tories & request for production by Defts.

Wilson & Lakin.

Defts. Sorensons Demand for jury trial (No.

4067).

Defts. Am. T & T Motion for more definite

statement, w/statement in support attached

(No. 4067).

Defts. (Mayne) Motion to dismiss (No.

4067).

Tribe’s Answer to interrogatories submitted

by Deft. IPS (No. 4067).

Tribe’s Reply to answer & counterclaim of

Deft. IPS (No. 4067).

Report To The Court As Per Order of De-

cember 15, 1975 (4024).

2-24

2-26

3- 2

3- 5

3- 8

3- 8

3- 9

106

107

108

109

110

111

112

113

114

115

116

117

118

119

29

Stipulation In Re 1975 Wheat Crop and Ex-

penses (4024 & 4026).

Defts. Wilson, Jackson, Peterson, & RGP

for more definite statement & for time to ob-

ject to report of Tribe (4024 & 26).

Deft. Travelers Insurance Answer (4024).

Defts. Wilson, Jackson & Lakins Demand for

trial by jury (all).

Order extending time for complyi i

plying with

= order of 12-15-76 as to eiaes to 3-4-

Report of Wilson & Jackson as per order of

court 12-15-75 in re corn crop South of Bar-

rett boundary.

(USA) Pltf.’s Motion to strike jury trial de-

mand, w/brief attached (4024). af

(Pitf. Tribe) Motion for order requiring rec-

onciliation of land surveys (4067). E

Motion to Dismiss As To Certain Named De-

fendants (Disclaimers). :

Answers To Interrogatories By Regina Ma-

rie Torticilli. . " .

Reply to Answer and Counterclaim of De-

fendants Harold Sorenson, et al.

Reply To Counterclaim of Roy Tibbals Wil-

son et al.

Plaintiff’s Motion To Amend.

Plaintiff’s Motion For Summary Jud

gment.

Response To Motion To Dismiss On Grounds

of Statute of Limitations and Motion For

Summary Judgment.

1976

3-10

3-12

3-15

3-15

3-16

3-17

3-18

3-19

120

121

122

123

124

125

126

127

128

129

130

131

30

Tribe’s Reply to demands for jury trial filed

and request for trial (4067), w/Memorandum

in support attached.

Stipulation by Tribe & Deft. Agricultural &

Industrial, that Deft. has until 3-29-76 to

move or plead (4067).

Deft. Torticilli’s Supplemental interrogatory

to Pitf. (4067).

Order granting Deft. Agri. & Industrial until

3-29-76 to move (4067).

Pitf. U.S. A. Responses to request for pro-

duction of documents, etc. under Rule 34

(4024).

Pitf. U.S.A. Answers to interrogatories of

Defts. Wilson & Lakin (4024).

Motion to Dismiss as to Defts. Mrs. Howard

Miller, Myrtle R. Riggs, Maude B. Hudgel

Estate, George B. Boulden Estate, Elmer

Swan, Ethel Parks, Charles H. Truelsen &

Duane A. Dowd.

Resistance of Defendants Roy Tibbals Wilson

et al. To The Reply Of Omaha Indian Tribe

To Demands For Jury Trial.

Resistance To Motion Of Plaintiff, U. S., To

Strike Demand For Trial By Jury Filed By

Defendants Roy Tibbals Wilson et al.

Answer—Defendant Williams Pipeline Com-

pany.

Plaintiff’s Motion To Amend Complaint by

Adding Named Defendants.

Official Government Plat and Field Notes of

the Dependent Resurvey of the Barrett Line.

3-22

3-24

3-24

3-25

3-25

3-26

3-29

132

133

134

135

136

137

138

139

140

141

31

Defts. Wilson & Jackson application to mod-

ify temporary injunction (4024 & 4026).

Defts. Wilson & Jackson Report & applica-

tion re 1976 farming & access issues (Oral

argument requested) (4024 & 4026).

Defts. Wilson & Jackson Application for

order directing reimbursement of 1974 fall

ground preparation & fertilizer expenses in-

curred for 1975 corn crop (4024 & 4026).

Pitf. Tribe Reapplication for access (4067).

Pitf. Tribe’s Answers to Interrogatories by

Northern Gas (4067).

Plaintiff’s Response To Motion To Dismiss.

Plaintiff’s Response To Supplementary In-

terrogatory from Regina Marie Torticilli.

Stipulation that Deft. Agricultural Co. may

have until 4-8-76 move or plead (4067).

Tribe’s Response to application to modify

temporary injunction & petition for denial of

application (4067).

Order on following motions: (OB 19-161)

1. Deft.’s AT&T to make more definite &

certain denied.

2. Pltf. Tribe to supplement crop report by

by 4-16-76. Defts. objections by 5-3-76.

Defts. Wilson, etc. to make more definite

& certain denied in all other respects.

3. Defts. to dismiss denied.

4. Pitf. Tribe’s to dismiss granted. (Mid-

Continent Eastern Pipeline & Mid-Amer-

ican Pipeline).

5. Defendant resurvey approved, unless

modified by 4-16-76, or Plitf. Tribe shows

just cause for disapproval.

4-13

4. 9

4-13

4-14

4-15

142

143

144

145

146

32

6. Pitf. Tribe to amend complaint denied.

7. Case No. 4067 severed with respect to

issues of damages & all issues concerning

lands not within the subject res of cases

Nos. 4024 & 4026.

8. Pltf. US & Pitf. Tribe to strike jury trial

demand granted with respect to con-

solidated cases; ruling reserved on re-

mainder of motion.

9. Pltf. Tribe motion for partial summary

judgment granted on those issues indi-

eated in text and denied in remaining

respects.

10. Clerk directed to pay from Registry

Fund the amount of $5,495.05 to Roy

Tibbals Wilson & Harold Jackson, jointly,

and $969.71 to RGP, Ine. & Otis Peterson,

jointly.

11. Defts. Wilson & Jackson to recover

$774.43 from Tribe at time of satisfac-

tion of all 1975 corn crop expenses.

Mailed Checks No. 1667 for $5495.05 (payable

to Wilson & Jackson) & No. 1668 for $969.71

(payable to RGP, Inc. & Peterson) to attor-

neys, Larsen & Peter Peters.

Defts. Wilson & Jackson Resistance to reap-

plication for access.

Memorandum brief in support of resistance.

Pitf. Tribe’s Withdrawal of motions pertain-

ing to access.

Govt.’s Reply to Defts.’ Resistance to motion

to strike demand for jury trial (4024).

Motion to have accepted the plat and descrip-

tion filed 1-21-76 by Omaha Tribe and to have

rejected the plat filed 3-19-76.

5-24

5-27

147

148

149

150

151

152

153

33

Additional interrogatories addressed to Pltf.

USA by Defts. Wilson, Lakin & Jackson.

Additional Request for Production of docu-

ments, ete. under Rule 34.

Defts. Wilson, Jackson, RGP & Peterson Ob-

jections & Exceptions to crop report of

Omaha Tribe.

Defts. Wilson, Jackson, RGP, Peterson,

Lakin & State of Iowa application for pos-

session pursuant to order of 6-5-75.

Government’s Request for extension of time

in which to respond to Omaha Tribe’s Motion

to have accepted the tribal plat of resurvey.

Order assigning cases to Honorable Andrew

W. Bogue, U. S. District Judge for District

of South Dakota for disposition.

Plaintiff’s Interrogatories to Defendants.

Tribe’s Resistance to application for posses-

sion pursuant to Order of 6-5-75, filed 4-30-

76, by Wilson, Jackson, RGP, Lakin, Peter-

son & State of Iowa.

Amendment by Tribe to above resistance

(correcting heading and case numbers).

Pltf.’s (USA) Resistance to Tribe’s Motion

to have accepted plat filed on 1-21-76.

Pltf.’s Resistance to Defts.’ Application for

possession.

Order of Judge Bogue that each paper filed

in cases be accompanied by one extra copy

for his use (OB 19-192).

Response by Tribe to objections & exceptions

to the crop report of the Omaha Tribe.

Tribe’s Motion to strike Pltf. (US) Resist-

ance to Tribe’s Motion to have plat accepted.

6-16

6-21

6-23

161

162

163

164

165

166

167

168

169

170

171

172

173

174

175

34

Tribe’s Motion to strike unsworn statements.

Memorandum of Points & authorities in sup-

port of motion to strike.

Deft. Travelers Ins. Answers to Interroga-

tories.

Notice of Appearance as Counsel of Record

for Omaha Indian Tribe by William H. Veed-

er, Alexandria, Virginia.

Government’s Answers To Interrogatories

(additional).

Plaintiff’s Resistance To Omaha Tribe’s Mo-

tion To Strike.

Filing Of Affidavit In Support of Motion

Dated May 27, 1976 By Omaha Tribe, To

Strike.

Memorandum In Support of Motion To

Strike.

Deft. State of Iowa’s Answers to Pitf.’s In-

terrogatories.

Order granting Defts. until 6-30-76 to answer

interrogatories of Pltf. USA.

Filing of Affidavit in Support of Motion

Dated May 27, 1976, by Omaha Tribe to

Strike.

Answers of Defts. Wilson, Jackson & Lakins

to Interrogatories of Pltf. USA.

Answers of Defts. RGP, Inc. & Peterson to

interrogatories of Pltf.

Pitf. Tribe’s Motion for an early trial on the

merits, w/affidavit of Chairman Edward L.

Cline attached.

Pitf. Tribe’s Motion to show government re-

jection of its own BLM 3-2-76 plat; and ac-

ceptance of plat filed by Tribe.

7-19

7-28

8-12

8-12

8-16

8-27

176

177

178

179

180

181

182

183

35

Defts. Wilson, Jackson, RGP, & Peterson

Answer to response by Omaha to objections

& exceptions to crop report.

Pkintiff (U. S.) Resistance To Omaha

Tribe’s Motion To Show Government Rejec-

tion of its own B. L. M. March 2, 1976 Plat

ete.

Order pursuant to agreement of counsel at

informal conference, that attorneys to meet

on 9-7-76 at 9:30 A.M. in U. S. Courthouse

in Sioux City and accomplish certain items—

stipulation of facts; exchange lists of wit-

nesses & exhibits & any other agreements to

facilitate case trial. A record to be kept and

written statements of stipulations of facts &

issues to be filed by 9-20-76 (OB 20-25).

Tribe’s Reply to counterclaim of Defts. RGP,

Ine. & Otis Peterson.

Motion by Tribe for partial summary judg-

ment.

Memorandum of Points & authorities in sup-

port of Motion.

Interrogatories ‘To Plaintiff United States of

America by Defendants Roy Tibbals Wilson

and Charles E. Larkin in Blackbird Barrett

Cases.

Interrogatories To Plaintiff Omaha Indian

Tribe by Defendants Roy Tibbals Wilson and

Charles E. Lakin in Blackbird Barrett Cas-

es.

Tribe’s Resistance to application for order di-

recting reimbursement of 1974 fall ground

preparation & fertilizer expenses incurred

for 1975 corn crop.

8-30 185

9-2 186

9-3 187

9-7 188

189

190

9-9 191

192

193

9-9 194

9-9 195

9-10 196

36

Order authorizing Court Reporter for con-

ference on 9-7-76 and Clerk to arrange for

compensation (OB 20-30).

Motion for leave to file amendment to An-

swer of Deft. State of Iowa (copy attached).

Motion by Tribe for a protective order

against the Justice Department in the Tribe’s

presentation & prosecution of Cases Nos.

4026 & 4067.

Pre-Trial Order, Proposed Agreed Facts of

Pltf. the Tribe.

Part I, Pre-Trial Order of Pltf. the Tribe.

List of Witnesses.

Part II, Pre-Trial Order of Pltf. the Tribe.

List of Exhibits.

Motion for leave to file amendment to an-

swer of Defts. Wilson & Lakins (4024) (copy

attached).

Motion for leave to file amendment to answer

of Defts. Wilson & Lakin (4026) (copy at-

tached).

Motion for leave to file amendment of Defts.

Wilson, Jackson, & Lakins (4067) (copy at-

tached).

Response of Tribe to interrogatories pro-

pounded by Defts. Wilson & Lakin in Black-

bird Barrett Cases.

Tribe’s Opposition to Motion for Summary

Judgment by the Travelers Insurance Com-

pany (See No. 87 in Case No. 4067).

Tribe’s Motion for hearing on Motion to

Strike 3-2-76 Bureau of Land Management

Survey.

9-14

9-17

9-20

9-21

9-23

197

198

199

200

205

206

207

37

Tribe’s Motion to require completion of pre-

mie process & preparation of final pre-trial

order.

Order setting cases relating to the Barrett

Survey area of the Blackbird Bend Tract for

trial on 11-1-76 at 1:00 P.M. (OB 20-43).

Defts. State of Iowa, & Conservation Com-

mission, Wilson, Jackson, Lakins, RGP &

Peterson, Motion for Order setting addition-

al preliminary pretrial conference.

Response of U.S. to interrogatories submit-

ted by Defts. Wilson & Lakin.

Response of U.S. to Tribe’s Motion for pro-

tective order against Dept. of Justice.

Tribe’ s Reply to amendments to answer of

intervening Defts. Wilson & Lakin (4026).

Tribe’s Reply to amendment to answer of

Defts. Wilson, Jackson & Lakins.

Tribe’s Proposed Agreed Facts & Joint Fx-

hibits.

Exhibit Testimony from Pretrial Conference

ey on 9-7-76 submitted by Bennett Cullison,

r.

Agreed Facts submitted by Peter J. Peters

one of the attorneys for Defts. USA, Wilson,

Lakin, RGP, Sorenson, State of Iowa, Jack-

son & Peterson.

U.S. Statement on disputed issue of facts

and law (4024).

Statement of Defts. State of Iowa & Iowa

Conservation Commission.

Tribe’s response to Defts’ Motion for order

setting additional preliminary pretrial con-

ference.

9-23

9-23

9-23

210

211

212

213

38

Deft. RGP Motion for leave to file amend-

ment to answer (4024).

Deft. RGP & Peterson Motion for leave to

file amendment to answer (4067).

Tribe’s Motion to be permitted in the trial of

consolidated cases to offer its evidence prior

to that of Justice Dept. in 4024; to have the

Justice Dept. aligned as an adversary in

these consolidated cases.

Transcript of pretrial conference held on

9-7-76 (one copy only).

9-27 213(a) Tribe’s Reply to amendment to answer of

9-28

9-29

214

215

216

217

218

Defts. RGP & Peterson.

U.S. Objections to 4 filings attached as one

pleading: (1) Objections to Tribe’s proposed

agreed facts & joint exhibits; (2) Resistance

to State of Iowa’s Motion to file amendment

to its answer; (3) Response to Tribe’s Mo-

tion to require completion of pretrial proc-

ess; (4) Resistance to Defts. Wilson & Lakins

Motion to amend answer.

U.S. Resistance to Tribe’s Motion for hear-

ing on motion to strike March 2, 1976 Bureau

of Land Management survey (4024).

Defts. Wilson, Jackson, Lakins, RGP, Peter-

son, State of Iowa, & Iowa Conservation Mo.

tion for further discovery.

Defts. Wilson & Lakins motion for leave to

file amendment to answer & withdrawal of

previous motion (not ruled on) for leave to

file amendment to answer (4024) (copy at-

tached).

Showing in support of motions of Detts.

Wilson, Lakin & Jackson for leave to file

amendments to their answers.

10- 1

10- 4

10- 5

10- 6

10- 7

10- 8

10-12

219

220

221

222

223

226

39

Defts. Wilson & Jackson Motion to enter in-

junction in previously file application (4024

& 4026).

Order Re. Defts. Motion, (Wilson, Jackson,

Lakins, R. G. P., Peterson, State of Iowa and

Conservation Commission) Tribe make ex-

pert witnesses, Clark & Robinson, available

for deposition, providing defts. have ex-

changed exhibits (OB 20-5).

Request by U.S. for admission by Defts.

Wilson, Lakins, RGP, Jackson, Peterson,

Travelers Ins. & State of Iowa of the truth

of statement re. lands in paragraph 2 of com-

plaint (4024).

Answer of Defts. Wilson, Lakin & Jackson

to request by the US for admission by Defts.

(4024).

Defts. Wilson, Jackson, Lakin, RGP, Peter-

son, State of Iowa & Conservation Comm.

Motion to clarify order of 9-29-76 & to set

date for reconvening preliminary pre-trial

conference & for taking depositions.

Pitf. (USA) Resistance to RFP’s (sic) Mo-

tion for leave to file amendment to answer

(4024).

Answer of Deft. State of Iowa to request by

U.S. for admission by Defts. (4024).

Order: On motion of 9-29-76 to clarify & to

set date for PPTC, & consolidated with mo-

tion by Tribe to require completion of pre-

trial process, phrase ‘‘exchange of exhibits’’

merely require parties to comply with local

rule 23B; reconvening PPTC for 10 AM on

10-12-76; Counsel for Tribe have available

for deposition on 10-14-76 at 2 PM their ex-

perts, Clark & Robinson: counsel for Tribe

227

231

233

234

10-14 235

40

& US to direct their surveying experts to

prepare for the Court topographical maps.

(OB 20-57).

Order: On Motions—State of Iowa to amend

answer—no resistance, motion granted: Deft.

Jackson to amend answer—denied as would

alter issues: Defts. Wilson & Lakin to amend

—denied: Deft. RGP to amend—denied: Deft.

Peterson to amend—denied: Defts. Wilson &

Jackson to enter injunction in previously filed

application—Pltf. Tribe enjoined & restrained

from making any further alterations to char-

acter of those lands within the previous in-

junctive decree, roads, culverts, ete. (OB 20-

58).

Order that counsel prepare & file with Clerk

in S. City, proposed findings of fact & con-

clusions of law 1 week prior to trial & 3

copies be mailed to Judge Bogue (OB 20-59).

Answer of Defts. RGP & Peterson to request

by US for admission by Defts. (4024).

Tribe’s Motion to request payment for tran-

script.

Resistance by US to Tribe’s 9-23-76 Motion

to offer evidence & to align parties (4024).

Deft. State of Iowa Amendment to Answer

(4024).

Tribe’s Response to resistance of Justice

Dept. to Tribe Motion of 9-23-76 to offer evi-

dence & to align parties.

Disclaimer by Deft. Monona County to land

within the Barrett Survey Area of Blackbird

Bend Tract & Motion for dismissal from that

action (4067).

Deft. Travelers Ins. Answer to request for

admission filed by US (4024).

- —

10-18 236

10-22 237

10-22 238

10-22 239

10-22 240

10-26 241

10-26 242

41

Tribe’s Motion for order granting access

across lands of Deft. Sorenson (4067).

Order: re. resurvey Tribe seeking to chal-

lenge accuracy made by Bureau of Land

Management: Tribe has not exhausted its

administrative remedies: differences insub-

stantial; therefore results of Bureau of Land

Management’s resurvey are adopted & will

be lines of reference during course of trial:

no evidence, for sole purpose to challenge re-

survey, will be admitted at trial on the mer-

its (OB 20-70).

Govt.’s Answer to State of Iowa’s Counter-

claim (4024).

Deft. Sorenson Proposed Findings of Fact

& Conclusions of Law.

Deft. Travelers Ins. Suggested Findings of

Fact & Conclusions of Law.

Order on Motions: (1) Application of Deft.

Wilson, Jackson, RGP, Lakin & State of

Iowa for possession of certain alloted land

sold to non-tribal members—DENIED. (2)

Motion by Tribe for partial summary judg-

ment against Peterson & RGP relating to de-

fenses asserted in answers of statute of lim-

itation estoppel & laches & related defenses—

GRANTED per order of 4-5-76, which dealt

in part with such defenses. (3) Motion of

Deft. Monona County for dismissal —

GRANTED as to trial of lands within Bar-

rett Survey only (OB 20-73).

Order on seating arrangement at trial, and

terms to be used; presentation of evidence

and with examination of witnesses in same

order as reference of terms; neither Pltf.

may cross-examine the other Pltf.’s witness-

10-26

10-26

10-26

10-26

10-26

10-27

10-28

10-28

10-29

243

244

245

246

247

248

249

250

251

252

42

es, and no Deft. another Deft.’s witnesses

(OB 20-74).

Order that daily transcript be prepared; cost

divided seven ways (each Pltf. shall bear

1/7 of cost. Defts. Wilson, Jackson, Lakin

together 1/7. Defts. RGP & Peterson 1/7.

Defts. Sorenson 1/7. tate of Iowa 1/7.

Travelers Ins. 1/7) (OB 20-75).

Pitf. U. S. Submission of plats pursuant to

Order of 10-7-76.

Pitf. U. S. Proposed Findings of Fact & Con-

clusions of Law.

Tribe’s Index to Findings of Fact & Conclu-

sions of Law.

Defts. Wilson, Lakins, RGP, Jackson, Peter-

son & State of Iowa Proposed Findings of

Fact & Conclusions of Law.

Depositions of Dr. George R. Hallberg: Dr.

Subhash C. Jain: Dr. John F. Kennedy:

Dr. Raul S. MeQuivey: Dr. Dary! B. Simons

(separate file).

Order on Motions filed by Tribe on 9-3-76 &

9-23-76: Motion for Protective Order de-

nied: Motion as to evidence—Tribe will be

expected to offer its evidence first; Tribe

will not be permitted to object to Govt. evi-

dence, to cross-examine Govt. witnesses, or

offer evidence in rebuttal to Govt. evidence

(OB 20-77).

Deft. Sorenson Resistance to Tribe’s Motion

for order granting access.

Deft. Sorenson List of Exhibits.

Order: all parties to brief question of where

risk of non-persuasion lies & submit briefs

at commencement of trial; order & manner

set out for presenting evidence (OB 20-77).

ll- 1

ll- 5

11-15

12- 3

12- 6

12- 7

3

8

260

262

43

Transcript of pretrial conference Part II on

10-12-76 (one copy only—given to Judge B.).

Pitf. (US) Memorandum on Burden of Proof

(4024).

Deft. Travelers Ins. Brief on question of risk

on nonpersuasion.

Deft. Sorenson Brief re. Risk of non-persua-

sion.

State of Iowa’s Memorandum on question of

burden of proof.

Tribe's Brief respecting question of where

risk of nonpersuasion lies.

Supplemental Memorandum of Law to Pro-

posed Findings of Fact & Conclusions of Law

submitted by Defts. Wilson, Lakins, RGP,

Jackson, Peterson & State of Iowa.

Tribe’s Motion & Objection to introduction

of evidence by Justice Dept. in these consol-

idated cases.

Tribe’s Motion to have this Court declare

burden of proof resides with Defts.

Deft. Sorenson Brief regarding consolidation.

Stipulation between Defts. “Iowa” & Soren-

son that in event judgment finds lands are

owned by Defts. & not by Tribe, that any

issue between Iowa & Sorenson as to owner-

ship of any of such land may be heard by

separate trial, provided in Rule 42b. FRCP.

(a) Deposition of E. M. Clark.

(b) Deposition of Charles S. Robinson behalf

of Defts. Separate file (Fees: 323.90 & )

Clerk’s Court Minutes of trial from 11-1-76

to 12-6-76.

12- 8

266

267

268

269

270

271

272

44

Plaintiff (Tribe) Exhibits.

Plaintiff (Government) Exhibits.

Defendants Exhibits.

Order granting Motion of Tribe for access

across land of Deft. Sorenson; further or-

dered that aecess shall be for time between

Jan. 1, 1977 to Dee. 31, 1977 and shall be

upon same terms & conditions as agreed be-

tween Tribe & Sorenson for 1976 (OB 20-

110).

Defts. Wilson, Jackson, RGP & Peterson’s

Motion to clarify Court’s Order of 1-3-77.

Tribe’s Response to Motion to clarify court

order of 1-3-77.

Order on defendani’s motion to clarify 1-3-

77 Order: Tribe entitled to deduct expenses

paid for access to land as a business expense

in calculating “net profits” to be paid to

Clerk of Court; Tribe to file its accounting

for 1976 by 3-1-77; if decision on the merits

were entered in favor of Defts. & against

Pitfs. then preliminary injunction by which

Pitfs. hold Blackbird Bend area would nec-

essarily be dissolved, thus rendering ques-

tion of aeceess moot; Defts. Motion to more

specifically limit access order be & hereby is

denied (OB 20-125).

Proposed Findings of Fact, Conclusions of

Law, and Decree, submitted by Defts. Wilson,

Lakins, Jackson, State of Iowa, RGP, Peter-

son, Sorenson & Travelers (separate file) No.

272 thru 278.

Above Defendants’ Brief on the Issue of

Burden of Proof.

Govt. Plaintiff’s Requested Findings of Fact

and Conclusions of Law.

Le ———~ _

» re

286

287

288

289

45

Government's Memorandum in support of its

Requested Findings of Fact and Conclusion

of Law.

Findings of Fact, Conclusions of Law, pro-

posed by Omaha Indian Tribe, Plaintiff.

Brief of Defendants.

Crop Report for 1976 by Omaha Tribe.

Tribe's | Motion for Judgment, w/Memoran-

dum of points & authorities in support of

motion attached.

Motion To Strike Brief of Defts. by Omaha

Indian Tribe. ;

Defts.’ Resistance to Tribe’s Motion to strike

“Brief of Defts.”

Defts.’ Objections & exceptions to crop re-

port of Omaha Tribe for 1976.

Order denying motion of Omaha Tribe to

strike brief of Defts. (OB 20-148).

Order that the court reporting charges sub-

mitted by Catherine Clark in amount of

$172.20 for pretrial conference taken on 9-7-

76 to be paid by the parties in same manner

& according to same division as was used in

payment of daily transcript of the trial (OB

20-156).

Tribe’s Response to Objections & Exceptions

to Crop Report of Omaha Tribe for 1976.

Letter from Judge Bogue to Attorneys filed

as part of the record because of the unique

nature of this case.

Memorandum Opinion.

See :

Findings of Fact and Conclusions of Law.

290

5- 4 290

46

DECREE: (1) Each & every one of the

Findings of Fact & Conclusions of Law are

by reference made a part hereof.

(2) The clear & convincing evidence is

that the original “Barrett Survey” lands &

accretions thereto have been entirely eroded

& washed away by the erosive force of the

river since 1867. The land in this litigation

was not left by avulsive action of the river,

but was formed by accretion to the riparian

land on the Iowa side of the river, commenc-

ing sometime after 1867 & defendants’ title

is derived therefrom.

(3) Plaintiffs’ prayers for relief are

hereby denied, & judgment given to defend-

ants on their counterclaims, & as between the

defendants on the one hand & the plaintiffs

on the other hand, title to the Barrett Sur-

vey land is quieted in defendants as their

respective interest may appear.

(Deeree continued):

(4) All prior injunctions or orders of

this Court to the contrary are dissolved.

(5) The preliminary injunction entered

6-5-75, giving possession of the Barrett Sur-

vey area to the Omaha Indian Tribe is here-

by vacated, dissolved and set aside.

(6) All monies from plaintiffs’ farm-

ing operations deposited with the Clerk are

the property of the defendants as their in-

terests may appear.

(7) Causes No. C 75-4024 & C 75-4026

and that portion of C-75-4067 involved in this

trial are dismissed, without costs to either

party (dated & signed on 5-2-77 — Judge

Bogue) (OB 20-192).

eH eee

o- 6 291

o- 9 292

47

Motion For Stay of the Decree Entered 5-4-

77 by Pitf. Omaha Indian Tribe.

NOTICE OF APPEAL from Decree en-

tered 5-4-77:

Copies mailed by Wm. H. Veeder on 5-9-77

to:

Donald O’Brien, P. O. Box 3223, Sioux City,

Iowa 51102.

James L. Clear, Dept. of Justice, Washing-

ton, D. C. 20530.

Edson Smith, 3535 Harney St. Omaha, Ne-

braska 68102.

Thomas R. Burke, S. 1900 First National

Center, Omaha, Nebr.

Jack W. Peters, 505-11 Park Bldg. Council

Bluffs, Iowa 51501

Peter J. Peters, 233 Pearl St. Council Bluffs,

51501.

Phillip J. Willson, 301 Park Bldg. Council

Bluffs, Ia. 51501

Bennett Cullison, Jr. Harlan, Iowa 51537.

Lowell Kindig, 300 Toy Bank Bldg. Sioux

City, Iowa 51101.

Maurice B. Nieland, 300 Toy Bank Bldg.

Sioux City, Iowa.

Wiley Mayne, 300 Commerce Bldg. Sioux

City, Iowa 51101.

Theodore Duffield, 729 Insurance Exchange

Bldg. Des Moines, Iowa.

P. L. Nymann, 383 Orpheum Electric Bldg.

Sioux City, Iowa.

5-11

5-12

1978

9-12

9-18

293

294

48

Certified copies of Notice of Appeal, Letter

of Judge Bogue to Attorneys filed 5-4-77;

Memorandum Opinion filed 5-4-77; Findings

of Fact and Conclusion of Law filed 5-4-77;

and Decree filed 5-4-77; Docket sheets of Con-

solidated eases and docket sheets of cases

C 75-4024, C 75-4026 and C 75-4067 mailed to

Robert C. Tucker, Clerk, U.S. Court of Ap-

peals, St. Louis, Missouri 53101, by Clerk of

U.S. District Court, Sioux City, Lowa.

Defts.’ Resistance To Motion Of Pitf.’s

Omaha Indian Tribe For Stay of Decree

Entered May 4, 1977, and Defts.’ Motion For

Further Relief.

NOTICE OF APPEAL by U.S. A. of decree

enter 5-4-77: Copies mailed by U.S. Attor-

ney’s office to attorneys of record; Certified

copies of Notice of Appeal and certified copies

of Supplemental docketing mailed to Robert

C. Tucker, Clerk, U.S. Court of Appeals, Sth

Cireuit, St. Louis, Mo. 53101, by Clerk of

U.S. District Court, Sioux City, Iowa.

Order: clarification of Decree of 5-4-77: Mo-

tion of Pltf. Tribe for stay of Decree denied

(OB 20-198).

FILED ORDER oft Judge Bogue TO TRANS.-

FER EXHIBITS. Exhibits received from

Janet M. Hansen, Deputy Clerk, Rapid City

on May 13, 1977.

Motion For Temporary Restraining Order

and Preliminary Injunction by State of Lowa.

Motion For Temporary Restraining Order

and Preliminary Injunction by defts. Rupp

and Weaver.

Tribe’s Motion for extension of time.

10- 2

10-20

10-23

10-24

10-26

10-31

299

300

301

302

303

304

305

306

307

49

Tribe’s Answer to State of Iowa’s Motion for

TRO & PL.

Tribe’s Answer to Deifts. Rupp & Weaver

Motion.

Order denying State of Iowa’s motion for

TRO (OB 22-77).

Order denying Rupp & Weaver’s Motion for

TRO (OB 22-78).

Order—Cases Nos. 4024, 4026 & 4067, except

any portions of said cases already finally

disposed of by the undersigned Court, are as-

signed to the Honorable Edward J. MeManas,

for disposition (signed by Judge Bogue) (OB

22.79).

Pltf.’s petition for temporary restraining

order and preliminary injunction w/affida-

vits attached.

Order: Monona County & its Board of Su-

pervisors shall forthwith remove barricade

erected across the vacated Monona County

road, and Defts. Henderson & Durr, & Board

of Supervisors are restrained from interfer-

ring with the use by the Omaha Indian Tribe

of the vacated road and the access thereof;

Pretrial hearing on preliminary injunction

set for 11:30 A.M. 11-2-78, in S.C. Hearing

in courtroom at 1:00 P.M. 11-2-78 (OB 22-

80).

Order: pursuant to 28 USC See. 455 (a), this

Court hereby disqualifies itself from hearing

or determining any further proceedings in

the cases (dated 10-19-78) signed by Andrew

W. Bogue (OB 22-82).

Tribe’s Motion to vacate setting for a pre-

trial hearing on 11-2-78 and the hearing on

preliminary injunction, w/stipulation in re:

1l- 2 308

309

310

1l- 6 311

50

Alma Schmidt Henderson and Gladys Durr

attached.

Tribe’s Motion for extension of time to have

continued the TRO as it pertains to Monona

County for 10 days.

Order (re: Henderson & Durr) pursuant to

Stipulation dated 10-31-78 attached. Counsel

have agreed to have made permanent the

TRO dated 10-24-78 (copy attached); to va-

eate hearing date on Petition of Tribe for

preliminary injunction (OB 22- ).

Order, pursuant to stipulation dated 11-2-78

(attached signed by Allen & Veeder) ; counsel

have agreed to have made permanent TRO

dated 10-24-78 (copy attached); Tribe to be

responsible for proper road markings & main-

tenance; to vacate hearing on petition for

preliminary injunction; Tribe will maintain

a movable ‘‘zebra board’’ for purposes of

ingress & egress (OB 22-85).

Marshal’s services on Order & Petition for

temporary restraining order & preliminary

injunction on 10-24 & 10-26 (Fees: $42.00).

GENERAL DOCKET

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Appeal from Northern District of Iowa

Case No. 77-1384

OMAHA INDIAN TRIBE, Treaty of 1854 with the U.S.

(10 Stat. 1043), Organized pursuant to the Act of 6/18/34

(48 Stat. 984; 25 USC 476) as amended,

Appellant,

vs.

ns

51

Roy Tibbals Wilson, Charles G. Lakin, Florence Lakin,

R. G. P. Incorporated, an Iowa corporation, Harold Jack-

son, Otis Peterson, Travelers Insurance Company, The

State of Iowa, Darrell L., Harold, Harold M. and Luea

Sorenson, State Conservation Commission of the State

of Iowa,

Appellees,

William H. Veeder

Attorney for Appellant

Peter J. Peters

Edson Smith

Robert H. Berkshire

Lowell C. Kindig

Thomas R. Burke

Lyman L. Larsen

Bennett Cullison, Jr. for State of Iowa

and State of Iowa Conservation Commission

Attorneys for Appellees

No. Below: C75-4024/C75-2046/C75-4067

Judge Below: Bogue

Date of Judgment: May 4, 1977

Notice of Appeal Filed: May 9, 1977

Date

1977

5-11

d-11

0-12

5-12

0-12

Proceedings

1 Cert. copies Notice of Appeal, Docket Entries

of D.Ct., Copy of D.Ct. Findings of Fact

and Judgment and Letter of Judge Bogue

dated 5/2/77.

Request for docketing fee.

Docketed appeal.

Appearance for appellant.

Received copies of D. Ct. titles & lawyers

(with No. 1).

5-12

5-13

5-16

5-16

5-16

5-17

5-19

5-19

5-23

5-24

52

Appellant’s Motion for stay pending appeal,

to restore injunction and for immediate hear-

ing.

Order: Appellants’ motions for stay pending

appeal and_ restoration of injunction are

granted and the previous injunction 1s re-

tored; appellees are given until Tuesday,

May 17, 1977, to respond to the motion tor

stay pending appeal; appeals to be expedited

and submitted at the June session in St. Paul,

MN.

Response and resistance of appellees to mo-

tions for stay pending appeal and motion to

vacate immediate temporary stay and request

for immediate hearing, with 77-1387.

Appearance appellees.

Certified copy order of District Court, with

77-1387.

Appearance appellees.

Appearance appellees.

Appearance appellees.

Argued and submitted on motion for stay

(with 1387) to Judges Lay, Stephenson, Web-

ster. William H. Veeder and Edward Sha-

waker, Dept. of Justice for appellants; Peter

J. Peters and Edson Smith for appellees.

Rebuttal by Mr. Veeder. Tape to law clerk

8-26

Order: Appellant’s motion for stay pending

appeal and restoration of injunction has been

considered by the court and mption for stay

pending appeal is granted and the previous

injunction restored; court expresses no opin-

ion as to the merits of the appeals; court’s

previous order about expediting will stand;

all briefs will be served and filed on or before

June 10, 1977, and case will be submitted to

0-24

5-26

6- 6

6- 6

6- 6

6- 7

6- 7

6-13

6-13

6- 7

6-10

6-10

6-13

6-13

6-27

6-27

6-27

6- 5

13

14

15

16

18

53

the court the week of June 13, 1977, in St.

Paul, Minnesota. |

‘Chronology of Significant Farming Prob-

lems’’ ete. submitted by counsel for appellees

(with 1387).

Transferred to JUNE session, w/1387.

Mo. applnt. for lv. to file overlength brief.

Received overlength brief applnt.

RECEIVED ORIGINAL AND 2 COPIES

DESIGNATED RECORD, with 1387. 7

VOLS. EACH.

Appendix. To court 6-7.

Order: Appellant’s motion for leave to file

enlarged brief is granted; clerk directed to

file previously tendered sixty-one page brief.

Motion of appellant for leave to file reply

brief after oral argument.

Arg. & sub. today, Stephenson, Henley. Wil-

liam H. Veeder (tribe) and Edward Sha-

waker, Dept. of Justice for aplnts. Edson

Smith and Peter J. Peters for appellees.

Concl. by Veeder. Recorded vy. 1387.

Brief appellant, Omaha Indian Tribe.

Brief of appellees.

Appendix to brief of appellees.

Appearance appellee.

RECEIVED letter from Nieland that he will

not be present for o/a.

Reply Brief aplees w/ser.

Rep. brf. applnt.

Ser. w/rep. brf. aplnt.

Ree’d. ser. for brf. aplnt. Omaha Indian.

1978

4-11

4-11

4-24

4-24

4-24

4-25

5- 2

5-12

5-19

6- 9

6-15

7-28

35

36

54

Opinion by Judge Lay (Printed & Published)

w/77-1387.

JUDGMENT: Judgment of Dist. Ct. is va-

cated & cause is remanded to the district

court w/77-1387.

Petition of appellees for rehearing w/1387.

Suggestion of appellees for rehearing en banc

w/1387.

Certificate of service of appellees’ petition

for rehearing and suggestion for en bane w/

1387.

Appellant’s bill of costs.

Order: Petition for rehearing en bane denied ;

petition for rehearing also denied (with 1387).

Mo. appellees for stay of mandate with 1387.

ORDER: Issuance of mandate stayed for 30

days from this date. If within that time a

petition for writ of certiorari is filed, stay

shall continue until final disposition of case

by Supreme Court with 77-1387.

Mo. appellees for further stay of mandate,

with 77-1387.

ORDER: Issuance of mandate stayed until

8/1/78 pending certiorari proceedings (w/

77-1387).

Received telephone notification of the docket-

ing of petition for writ of certiorari in Case

No. 78-161, State of Iowa and State Conser-

vation Commission of the State of Iowa, Peti-

tioners, v. Omaha Indian Tribe and U.S. A.,

Respondents, with 77-1387.

Received telephone notification of the docket-

ing of petition for writ of certiorari as Case

7-28

37

39

41

42

55

No. 78-160, _Roy Tibbals Wilson, Charles

Lakin, Petitioners, v. Omaha Indian Tribe

and U.S. A., Respondents, with 77-1387.

Received telephone notification of the docket-

ing of petition for writ of certiorari as Case

No. 78-162, R.G.P., Inc., Travelers Insur-

ance Company, and Otis Peterson, Petition-

ers, v. Omaha Indian Tribe and U.S.A.

Resps., with 77-1387,

Notice of filing petition for writ of certiorari

to Supreme Court of United* States as Case

No. 78-160 (as of 7/28/78), with 77-1387.

Notice of filing petition for writ of certiorari

to Supreme Court of United States as Case

No. 78-161 (as of 7/28/78), with 77-1387.

Notice of filing petition for writ of certiorari

to Supreme Court of United States as Case

No. 78-162 (as of 7/28/78), with 77-1387.

Clerk’s certificate evidencing the docketing

of petition for writ of certiorari in Case No.

78-160, with 77-1387,

Clerk’s certificate evidencing the docketing

of petition for writ of certiorari in Case No.

(8-161, with 77-1387.

Clerk’s certificate evidencing the docketing

of petition for writ of certiorari in Case No.

(8-162, with 77-1387.

56 -

GENERAL DOCKET

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Appeal from Norther District of Iowa

Case No. 77-1387

with No. 77-1384

United States of America,

Appellant,

VS.

Rov Tibbals Wilson, Charles G. Lakin, Florence Lakin,

R. G. P. Incorporated, an Iowa corporation, Harold Jack-

son, Otis Peterson, Travelers Iasurance Company and

the State of Iowa,

Appellees.

James W. Moorman, Department of Justice

Edmund B. Clark, Department of Justice

Raymond N. Zagone, Department of Justice

James J. Clear, Department of Justice —

Edward Shawaker, Department of Justice

Attorneys for Appellant

Peter J. Peters

Lowell C. Kindig

Thomas R. Burke

Lyman L. Larsen

Attorneys for Appellees

No. Below: C75-4024

Judge Below: Bogue

Date: May 4, 1977

Notice of Appeal Filed: May 11, 1977

Date Nr. Proceedings

1977

5-12 Docketed Appeal.

5-12

5-12

5-12

5-16

5-13

5-16

5-16

5-16

5-19

5-19

5-23

5-24

5

57

Motion for Stay Pending Appeal, to Restore

Injunction and for Immediate Hearing, &

Memorandum in Support.

Copies of District Court Memorandum and

Order.

Appearance for United States, Appellant.

Cert. copies Notice of Appeal and Docket

Entries (Suppl. to those previously sent in

77-1384).

Order: Appellants’ motions for stay pending

appeal and restoration of injunction are

granted and the previous injunction is re-

stored; appellees are given until Tuesday,

May 17, 1977, to respond to the motion for

stay pending appeal; appea's to be expedited

and submitted at the June session in St. Paul,

MN. w/77-1384.

Response and resistance of appellees to mo-

tions for stay pending appeal and motion to

vacate immediate temporary stay and request

for immediate hearing, with 77-1384.

Appearance appellees w/77-1384.

Certified copy order of District Court, with

77-1384.

Appearance appellees w/77-1384.

Appearance appellees w/77-1384.

Appearance for appellant.

Order: Appellant’s motion for stay pending

appeal and restoration of injunction has been

considered by tle court and motion for stay

pending appeal is granted and the previous

injunction restored; court expresses no opin-

ion as to the merits of the appeals; court’s

previous order about expediting will stand;

5-24

5-24

5-26

6- 6

6-13

6- 9

6- 9

6-10

7-11

7-11

1978

4-11

4-11

coon ce

10

58

all briefs will be served and filed on or before

June 10, 1977, and case will be submitted to

court the week of June 13, 1977, in St. Paul,

Minnesota w/77-1384.

Argued and submitted on motion for stay

(with 1384) to Judges Lay, Stephenson and

Webster. William H. Veeder and Edward

Shawaker, Dept. of Justice for appellants;

Peter J. Peters and Edson Smith for appel-

lees. Rebuttal by Mr. Veeder.

‘‘Chronology of Significant Farming Prob-

lems’’ ete. submitted by counsel for appellees

(with 1384).

‘Transferred to JUNE session w/1384.

RECEIVED ORIGINAL AND 2 COPIES

DESIGNATED RECORD, with 1384. 7

VOLS. EACH.

Arg. & Sub. to Judges Lay, Stephenson, Hen-

ley. William H. Veeder (tribe), Edward

Shawaker, Dept. of Justice for aplnts. Edson

Smith and Peter J. Peters for appellees.

Concl. by Veeder. Recorded w/13884.

Brf. aplnt.

Ser. w/brf. aplnt.

Brf. aplees w/ser.

Rep. brf. aplnt.

Ser. w/rep. brf. aplnt.

Opinion by Judge Lay. (Printed & Published)

w/77-1384.

JUDGMENT: Judgment of Dist. Ct. is va-

eated & cause is remanded to district court,

w/77-1384.

4-20

4-24

4-24

4-24

7-28

59

11 Appellant’s waiver of costs.

Petition of appellees for rehearing w/1384.

Suggestion of appellees for rehearing en bane

w/1384.

Certificate of service of appellees’ petition

for rehearing w/suggestion for en banc, w/

al3s4.

Order: Petition for rehearing en banc denied;

petition for rehearing also denied (with

1384).

Mo. appellees for stay of mandate, with 1384.

ORDER: Issuance of mandate stayed for 30

days from this date. If within that time a

petition for writ of certiorari is filed, stay

shall continue until final disposition of the

case by the Supreme Court, w/1384.

Mo. appellees for further stay of mandate,

with 1384.

ORDER: Issuance of mandate stayed until

8/1/78 pending certiorari proceedings (w/77-

1384).

Received telephone notification of the docket-

ing of petition for writ of certiorari as Case

No. 78-161, State of lowa and State Conser-

vation Commission of the State of Iowa, Peti-

tioners, v. Omaha Indian Tribe and U.S. A,,

Respondents, with 77-1384.

Received telephone notification of the docket-

ing of petition for writ of certiorari as Case

No. 78-160, Roy Tibbals Wilson, Charles

Lakin, Petitioners, v. Omaha Indian Tribe

and U.S. A., Respondents, with 77-1384.

Received telephone notification of the docket-

ing of petition for writ of certiorari as Case

@o

i

~l

@

i

~~

8- 7

60

No. 78-162, R. G. P., Inc., Travelers Insurance

Company, and Otis Peterson, Petitioners, v.

Omaha Indian Tribe and U.S. A., Respond-

ents, with 77-1384.

Notice of filing petition for writ of certiorari

to Supreme Court of United States as Case

No. 78-160 (as of 7/28/78), with 77-1384.

Notice of filing petition for writ of certiorari

to Supreme Court of United States as Case

No. 78-161 (as of 7/28/78), with 77-1384.

Notice of filing petition for writ of certiorari

to Supreme Court of United States as Case

No. 78-162 (as of 7/28/78), with 77-1384.

Clerk’s certificate evidencing the docketing

of petition for writ of certiorari in Case No.

78-160, with 77-1384.

Clerk’s certificate evidencing the docketing

of petition for writ of certiorari in Case No.

78-161, with 77-1384.

Clerk’s certificate evidencing the docketing

of petition for writ of certiorari in Case No.

78-162, with 77-1384.

61

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

No. C 75-4024

THE UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROY TIBBALS WILSON, CHARLES @G. LAKIN,

FLORENCE LAKIN, R.G.P., INCORPORATED, an

Iowa Corporation, HAROLD JACKSON, OTIS PETER-

SON, TRAVELERS INSURANCE COMPANY and the

STATE OF IOWA,

Defendants.

(Filed May 19, 1975)

COMPLAINT TO QUIET TITLE AND

FOR INJUNCTIVE RELIEF

CLAIM I

1. The United States is plaintiff in this action and

this court has jurisdiction under 28 U.S. C. 1345.

2. The United States owns land in Monona County,

Towa, which is described as follows:

All deseriptions are from the T. H. Barrett Survey.

Township 24 north, Range 10 east, 6th P.M. (Plat ap-

proved October 2, 1867).

Section 10, all that portion east of the 1943 Towa-

Nebraska compact line.

Section 11, lots 3, 4, 5, 6 and 7, NW1%4 SW, 8%

SW, and all that portion of lots 1 and 2 east of the

1943 Iowa-Nebraska compact line, except certain lands

allotted to individual members of the Tribe and sold to

non-members.

62

Section 13, lots 1, 2, 3 and 4, S% N%, St.

Section 14, lot 1, NW14 NE, S% NEM, NW, 8,

except certain lands allotted to individual members of

the Tribe and sold to non-members.

Section 15, all that portion east of the 1943 Iowa-

Nebraska compact line.

Section 22, all that portion east of the east or left

bank of the present Missouri River.

Section 23, lots 1 and 2, N% NE™%4 and NE%4 NW,

and all that portion of lot 3 and the W4%2 NW% east of

the east or left benk of the present Missouri River.

Section 24, lots 1, 2, 3 and 4.

Township 24 north, Range 11 east 6th P.M. (Plat ap-

proved October 2, 1868).

Section 17, lots 1, 2, 3 and 4.

Section 18, lots 1, 2, 3 and 4,S% NM&% Sh.

Section 19, lots 1, 2, 3 and 4.

Section 20, all of the fractional section.

The lands described are believed to contain approxi-

mately 2900 acres.

In addition to the above-deseribed lands, the plaintiff

claims for the use and benefit of the Omaha Tribe of

Indians all lands in the bed of the Missouri River as it

existed when the Omaha Indian Reservation was created

extending from the lands described to the center of the

main channel of the River.

3. The lands described in paragraph 2 are a part

of the Omaha Indian Reservation to which the United

a =

63

States holds title for the use and benefit of the Omaha

Tribe of Indians.

4. The Omaha Tribe of Indians and members of

that Tribe are now in possession of the lands described

in paragraph 2.

3. The defendants, or some of them, are claiming

some right to title or interest in and to the lands de-

scribed in paragraph 2 and are asserting the right to

possession of those lands. The claims of defendants are

null and void and of no effect.

6. The plaintiff is entitled to a judgment quieting its

title to the lands described in paragraph 2 to be held for

the use and benefit of the Omaha Tribe of Indians, up-

holding the right of possession of the Omaha Tribe and

its members to those lands, and declaring that the de-

fendants have no right to title or interest in and to such

lands and no right to the possession thereof.

7. The plaintiff and the Omaha Tribe of Indians

will suffer irreparable injury unless judgment is entered

by this court upholding their title and right to possession

of the lands described in paragraph 2.

WHEREFORE, the plaintiff prays that judgment be

entered as follows:

(a) For a preliminary injunction maintaining the

Omaha Tribe and its members in possession of the lands

described in paragraph 2 hereof until the rights of the

parties of this action can be determined by this court.

(b) For a judgment quieting the title of the United

States to the lands described in paragraph 2 for the use

Ot

and benefit of the Omaha Tribe of Indians; declaring that

defendants have no right to title in or to such lands, or

any of them; and enjoining the defendants from asserting

any title to such lands or interfering in any way with

the possession, use and occupancy of such lands by the

United States, the Omaha Tribe and its members.

(c) For such other relief as the court may find jus-

tified and for the costs of this action.

CLAIM II

8. Plaintiff adopts and incorporates paragraphs 1

through 7 above.

9. Defendants Harold Jackson and Otis Peterson

heretofore on or about April 23, 1975, filed a petition in

the District Court of Towa in and for Monona County

which appears in the records of that court as Equity No.

18965, a copy of which is attached to this complaint.

Named as defendants therein are six Indians in their in-

dividual capacity and as representatives of all members

of the Omaha Tribe of Nebraska, their agents, employees

or representatives.

10. The plaintiffs in Effuity No. 18965 claim to be

tenants in actual occupancy of a portion of the lands de-

scribed in paragraph 2 of this complaint and seek Tempo-

rary and Permanent Writs of Injunction prohibiting mem-

bers of the Omaha Tribe from oceupying said lands or

interfering with Jackson’s and Peterson’s farming of the

land claimed by them. The purpose and effect of the

netition in Equity No. 18965 is to challenge the title and

possession of the United States and of the Omaha Tribe

of Nebraska to those lands claimed by Jackson and Peter-

65

son. The United States is an indispensable party to

Equity No. 18965. It is not a party to Equity No. 18965

and cannot be made a party to that action. By filing this

action, the United States has brought before this court

all interested parties so that all conflicting claims may be

litigated in one action. Any judgment entered in this

action will be binding upon the Omaha Tribe of Nebraska

and its officers since they are represented by the United

States.

11. The United States is entitled to have title to the

property claimed by it on its own behalf and on behalf

of the Omaha Tribe of Nebraska quieted against any

claims by defendants Jackson and Peterson.

12. Equity No. 18965 is an attempt by defendants

Jackson and Peterson to wrest possession from the United

States and its wards in an action to which the United

States is not and cannot be made a party, to the perman-

ent and irreparable injury of the United States and its

Indian wards. The mere pendancy of the state court

action constitutes a threat against and an interference

with the substantial rights of the United States and its

wards, and threatens the jurisdiction of this court to hear

and determine actions brought by the United States to

quiet title to land.

WHEREFORE plaintiff prays:

(a) That this court enter an order permanently en-

joining defendants Jackson and Peterson, their agents,

employees, or assigns and all persons in active concert or

participation with them from prosecuting or attempting

to prosecute the action entitled Jackson, et al. v. Cline,

et al., Equity No. 18965, In the District Court of Iowa in

66

and for Monona County, insofar as that action relates to

any lands described in paragraph 2 of this complaint;

(b) For an order permanently enjoining defendants

Jackson and Peterson and their agents, employees, or as-

signs and all persons in active concert or participation

with them from enforcing or attempting to enforce an

order entered in Equity No. 18965 on or about May 15,

1975, which plaintiff is informed and believes prohibits

certain members of the Omaha Tribe from maintaining

possession of a portion of the lands described in para-

graph 2 of the complaint and/or prohibiting them from

interfering with farming activities by defendants Jackson

and Peterson;

(ec) For preliminary injunction restraining defend-

ants Jackson and Peterson and their agents, employees or

assigns and all persons in active concert or participation

with them from prosecuting or attempting to prosecute

Equity No. 18965 or enforcing or attempting to enforce

the order entered therein on or about May 15, 1975, until

the rights of the parties in this action can be determined

by this court;

(d) For such other and additional relief as may be

just and proper.

EVAN L. HULTMAN

United States Attorney

By /s/ Robert L. Sikma

Assistant United States Attorney

Northern District of Iowa

67

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

No. C 75 4024

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROY TIBBALS WILSON, et al.,

Defendants.

SEPARATE ANSWER AND COUNTERCLAIM

OF DEFENDANT OTIS PETERSON

Comes now the defendant Otis Peterson and for his

answer to the plaintiff’s complaint and his counterclaim

states:

ANSWER TO CLAIM I

1. He admits the allegations of Paragraph 1 of said

Claim I.

2. He denies the allegations of Paragraph 2 of Claim

IT and alleges that all of the land described in that para-

graph has been totally washed away and destroyed by the

Missouri River.

3. He denies the allegations of Paragraph 3 of said

claim.

4. He denies the allegations of Paragraph 4 of said

claim.

5. He denies the allegations of Paragraph 5 of said

claim and alleges that he is the tenant under a written

lease and an extension thereof, a true copy of which is

68

attached hereto ant® made a part hereof, and that his

landlord under that lease, RGP, Ine., is the owner of the

following described real estate:

(Land description omitted in printing.)

6. He denies the allegations of Paragraph 6 of said

claim.

7. He denies the allegations of Paragraph 7 of said

claim.

ANSWER TO CLAIM II

8. He incorporates herein as his answer to Para-

graph 8 of said Claim II Paragraphs 1 through 7 of his

answer to Claim I.

9. He admits the allegations of Paragraph 9 of said

claim.

10. He denies the allegations of Paragraph 10 of

said claim except that he admits that in the described

action in the District Court of Towa in and for Monona

County, he and his co-plaintiff, Harold Jackson, sought

temporary and permanent writs of injunction against

various named and described persons who had come upon

the land with respect to which said persons are tenants

and who have interfered with the lawful possession of

this defendant and the said Harold Jackson. Temporary

injunctions have been granted by that court against the

named and described defendants in that action.

11. He denies the allegations of Paragraph 11 of

said claim.

12. He denies the allegations of Paragraph 12 of

said claim.

69

COUNTERCLAIM FOR INJUNCTION

13. He incorporates herein the allegations of Para-

graph 5 of his answer to Claim I.

14. He incorporates herein the allegations of Para-

graphs 9 and 10 of his answer to Claim II.

15. He is entitled to injunctive relief from this Court

to maintain his lawful possession of the land of which he

is the tenant and to prevent the plaintiff and all other

persons from interfering with his right to the possession

of that land.

WHEREFORE, defendant, Otis Peterson, prays that

the Court dismiss plaintiff’s complaint at plaintiff’s cost

and that the Court enter preliminary and permanent in-

junctions against plaintiff and all other persons (except

defendants, their agents, employees and successors in in-

terest) from interfering with the right to possession of

the land deseribed above of which this defendant is the

lawful tenant. Said defendant prays for all such other

and further general equitable relief as shall be deemed

just by the Court.

By /s/ Peter J. Peters

PETERS, CAMPBELL AND PEARSON

233 Pearl Street

Council Bluffs, Iowa 51501

Telephone No. 712-328-3157

Attorneys for Defendant Otis Peterson

(Proof of service omitted in printing.)

70

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

NO. C 75-4024

THE UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROY TIBBALS WILSON, et al.

Defendants.

SEPARATE ANSWER AND COUNTERCLAIM

OF DEFENDANT, HAROLD JACKSON

(Filed June 9, 1975)

Comes now defendant, Harold Jackson, and for his

answer to plaintiff’s complaint and counterclaim states:

ANSWER TO CLAIM I

1. He admits the allegations of paragraph 1 of said

Claim I.

2. He denies the allegations of paragraph 2 of Claim

I and alleges that all of the land described in that para-

graph has been destroyed by the Missouri River.

3. He denies the allegations of paragraph 3 of said

Claim.

4. He denies the allegations of paragraph 4 of said

Claim.

5. He denies the allegations of paragraph 0 of said

Claim and alleges that he is the tenant under a written

lease, a true copy of which is attached hereto and made a

part hereof and that his landlord under that lease, Roy

71

Tibbals Wilson, is the owner of the following described

real estate :

(Land description omitted in printing.)

6. He denies the allegations of paragraph 6 of said

Claim.

7. He denies the allegations of paragraph 7 of said

Claim.

ANSWER TO CLAIM II

8. He incorporates herein as his answer to para-

graph 8 of said Claim IT paragraphs 1 through 7 of his

answer to Claim I.

9. He admits the allegations of paragraph 9 of said

Claim.

10. He denies the allegations of paragraph 10 of said

Claim except that he admits that in the described action

in the Distriet Court of Iowa, in and for Monona County,

he and his co-plaintiff, Otis Peterson, sought temporary

and permanent writs of injunction against various named

and described persons who had come upon the land with

respect to which said persons are tenants and who have

interfered with the lawful posse...on of this defendant

and the said Otis Peterson. Temporary injunctions have

been granted by that court against the named and de-

scribed defendants in that action.

11. He denies the allegations of paragraph 11 of said

Claim.

12. He denies the allegations of paragraph 12 of said

Claim.

72

COUNTERCLAIM FOR INJUNCTION

13. He incorporates herein the allegations of para-

graph 5 of his answer to Claim I of the plaintiff.

14. He incorporates herein by reference paragraphs

9 and 10 of his answer to Claim IJ of plaintiff.

15. He is entitled to injunctive relief from this court

to maintain his lawful possession of the land of which he

is the tenant and to prevent plaintiff and all other per-

sons from interfering with his right to possession of that

land.

WHEREFORE, defendant, Harold Jackson, prays

that the court dismiss plaintiff’s complaint at plaintiff’s

eosts and that the court enter preliminary and permanent

injunctions against plaintiff and all other persons (except

defendants, their agents, employecs and successors in in-

terest) from interfering with the right to possession of

the land deseribed ahove of which this defendant is the

lawful tenant. Said defendant prays for all such other

and further general equitable relief as shall be deemed

just by the court in the premises.

KENNEDY, HOLLAND, DeLACEY

& SVOBODA

By /s/ Thomas R. Burke

Suite 1900, One First National Center

Omaha, Nebraska 68102

Telephone No. (302) 342-8200

JOHNSON, STUART, TINLEY,

PETERS & THORN

By /s/ Jack W. Peters

501-511 Park Building

Council Bluffs, Iowa 51501

Telephone No. (712) 322-4033

Attorneys for Defendant, Harold Jackson

73

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

No. C 75-4024

THE UNITED STATES OF AMERICA,

Plaintiff,

Vs.

ROY TIBBALS WILSON, CHARLES G. LAKIN,

FLORENCE LAKIN, R.G.P., INCORPORATED, an

Iowa Corporation, HAROLD JACKSON, OTIS PETER-

SON, TRAVELERS INSURANCE COMPANY and the

STATE OF IOWA,

Defendants.

ANSWER OF DEFENDANTS ROY TIBBALS

WILSON, CHARLES E. LAKIN, AND

FLORENCE LAKIN

For answer to Claim I of plaintiff’s complaint the

defendants, Roy Tibbals Wilson, Charles E. Lakin, de-

scribed as Charles G. Lakin in the caption of plaintiff’s

complaint, but whose true and correct name is Charles E.

Lakin, and Florence Lakin, admit, deny and allege as

follows:

1. Admit the allegations of paragraph 1 of said com-

plaint.

2. Deny that the plaintiff owns all or any of the

land described in paragraph 2 of said complaint. Admit

that in 1867, when the T. H. Barrett Survey was made,

land described as in paragraph 2 of said complaint (but

of course without reference to the 1943 Iowa-Nebraska

Compact Line or to the east or left bank of the Missouri

River) existed, not in Monona County, Iowa, but within

the borders of the state of Nebraska on the right or Ne-

74

braska bank of the Missouri River. Said land, between

the years 1867 and 1943, was eroded away by the action of

the Missouri River and ceased to exist at the described

location, having been washed down the river. New land

was created between the years 1867 and 1943 by the proc-

ess of aceretion to the left or Towa bank of the Missouri

River, which accretions extended over all of the area of

the earth’s surface oceupied in 1867 by the land described

in paragraph 2 of plaintiff’s complaint. Said aceretion

land, upon coming into existence, became the property of

the riparian owners on the Iowa bank of the Missouri

River to whose land it had accreted. By mesne convey-

ances from said riparian owners or from persons who

obtained title from or against them, the defendants, Roy

Tibbals Wilson and Charles E. Lakin, became and are

now the owners in fee simple of the portions of said ac-

cretion land which fall within the borders of tracts of

land owned by them and appropriately described by Iowa

section, township and range numbers as follows:

Roy Tibbals Wilson is the owner in fee simple of

the following described land situated in Monona County,

Iowa:

(Description of land omitted in printing.)

Roy Tibbals Wilson leased the above land to the defend-

ant, Harold Jackson, under written lease dated August

15, 1974 for a term of one year from March 1, 1975 to

February 28, 1976, and Jackson is entitled to possession

of said land under said lease.

Charles E. Lakin is the owner of the following de-

scribed land which is situated in Monona County, Iowa:

qr

(Land description omitted in printing.)

3. Admit that the lands described in paragraph 2

of plaintiff’s complaint were in 1867 a part of the Omaha

Indian Reservation to which the United States held title

for the use and benefit of the Omaha Tribe of Indians.

However, said title was extinguished when said land

ceased to exist when it was eroded away and washed

down the river, and these answering defendants deny the

allegations of paragraph 3 of plaintiff’s complaint.

4. Deny the allegations of paragraph 4 of plaintiff’s

complaint. The defendants, Roy Tibbals Wilson and

Charles E. Lakin, and those through whom they derived

title, have, personally and by their tenants, been in pos-

session of their respective lands described in paragraph 2

of this answer for more than thirty years last past, sub-

ject. only to a brief invasion by members of the Omaha

Tribe of Indians in the spring of 1973 which was termi-

nated pursuant to a court order, and a second invasion

commencing on April 2, 1975, which invasions have been

resisted by the said defendants to the best of their abil-

ity. During the above described period of thirty years or

more the tillable land included in the tracts described in

paragraph 2 hereof has been cleared and rendered pro-

ductive by these answering defendants and their predeces-

sors in title. The defendant, Harold Jackson, as tenant

of the Wilson land, is entitled to possession thereof and

has been and is in possession thereof subject only to the

interference with his possession by certain members of

the Omaha Tribe of Indians commencing April 2, 1975.

d. For answer to paragraph 5 of plaintiff’s com-

plaint the defendants, Roy Tibbals Wilson and Charles

76

E. Lakin, admit that they claim title to the lands as al-

leged in paragraph 2 hereof, and allege that their titles

and ownership are lawful and valid and that the claims

of the plaintiff are null and void and of no effect.

6. These answering defendants deny that the plain-

tiff is entitled to any judgment as asserted in paragraph

6 of plaintiff’s complaint, and allege that the defendant

Charles E. Lakin is entitled to a judgment quieting title

in fee simple in him to the land described in paragraph

2 hereof as owned by him, and upholding his right to

possession thereof as against the claims of the plaintiff

and the Omaha Tribe of Indians; and that the defendant

Roy Tibbals Wilson is entitled to a judgment quieting

title in fee simple in him to the land described in para-

eraph 2 hereof as owned by him, and upholding his right

to possession thereof as against the claims of the plain-

tiff and of the Omaha Tribe of Indians, but subject to

the rights of the defendant, Harold Jackson, under his

lease above described. The defendants Roy Tibbals Wil-

son and Charles EF. Lakin are entitled to an order declar-

ing that the United States and the Omaha Tribe of In-

dians have no right, title or interest in or to the lands

described in paragraph 2 hereof, and no right to posses-

sion thereof.

7. Deny the allegations of paragraph 7 of plaintiff’s

complaint. The defendants, Roy Tibbals Wilson and

Charles E. Lakin and each of them will suffer irreparable

injury unless judgment is entered by this Court uphold-

ing their title and right to possession of the lands de-

scribed in paragraph 2 hereof.

77

8. As an additional and separate defense these an-

swering defendants allege that the defendants Roy Tib-

bals Wilson and Charles E. Lakin and their predecessors

in title have been in op 1 adverse possession of the lands

described in paragraph 2 hereof under color of title for

more than thirty years prior to the filing of the com-

plaint in this action by plaintiff; that prior to the filing

of said complaint the plaintiff had not contested the own-

ership and possession of said land by said defendants

and their predecessors in title but had acquiesced in the

same; that plaintiff by its Geological Survey, a part of

its Department of the Interior of which the Bureau of

Indian Affairs is also a part, in 1966 published a map of

the area involved showing on said map the eastern bound-

ary of the Omaha Indian Reservation as being the Mis-

souri River as it existed in 1965: that relying on the fore-

going acquiescence and representations of the plaintiff

the said defendants and their predecessors in title pur-

chased said land from the apparent owners thereof, cleared

it of trees and otherwise prepared it for cultivation, in-

stalled irrigation equipment, dug drainage ditches, and

paid taxes on said land, all involving great expense to

these defendants and their predecessors in title. Also,

witnesses who had knowledge of the action of the Mis-

souri River in the vicinity of the land described in para-

graph 2 of plaintiff’s complaint and in paragraph 2 of

this answer, and of what effect such action had with re-

spect to said land, have died and, due to the delay by

the plaintiff in asserting its claim, said witnesses are

unavailable to testify. By reason of the foregoing these

defendants will be greatly prejudiced if the plaintiff is

permitted to assert its claim effectively at this time, and

78

the plaintiff by reason cf its laches is estopped from

claiming or asserting any title it might otherwise have in

said tracts described in paragraph 2 hereof or in any

part thereof.

ANSWER TO CLAIM IT

For answer to plaintiff’s Claim IT these answering

defendants deny, admit, and allege as follows:

9. Adopt and incorporate their answers heretofore

made to paragraphs 1 through 7 of plaintiff’s complaint.

10. Admit the allegations of paragraph 9.

11. Deny that the purpose and effect of the petition

in equity no. 18965 is to challenge the title and posses-

sion of the United States and of the Omaha Tribe of

Nebraska to those lands claimed by Jackson and Peter-

son, and deny that the United States is an indispensible

party to equity no. 18965. Admit the other allegations of

paragraph 10 of plaintiff’s complaint.

12. Deny the allegations of paragraph 11 of plain-

tiff’s complaint.

13. Deny the allegations of paragraph 12 of plain-

tiff’s complaint.

COUNTER-CLAIM

For their counter-claim against the plaintiff the de-

fendants Roy Tibbals Wilson and Charles E. Lakin and

Florence Lakin, allege as follows:

14. This court has jurisdiction over this counter-

claim by reason of Rule 13 (a) of the Federal Rules of

Civil Procedure.

79

15. These answering defendants adopt and incorpo-

rate herein by this reference the allegations in their fore-

going answer to plaintiff’s complaint. They further adopt

and incorporate herein by this reference their “Resist-

ance to Motion Of Plaintiff For Preliminary Injunction”,

and their “Motion For Preliminary Injunction By De-

fendants Roy Tibbals Wilson, et al.” and renew the pray-

ers thereof.

WHEREFORE, these answering defendants pray

that judgment be entered as follows:

(a) Denying the preliminary injunction prayed

for by plaintiff and granting these answering defend-

ants a preliminary injunction enjoining plaintiff, the

Omaha Tribe of Indians, their agents, employees,

members and all other persons acting under their

direction, from interfering with the possession of the

lands deseribed in paragraph 2 hereof by these de-

fendants and Harold Jackson, the tenant of the de-

fendant Roy Tibhals Wilson, until the rights of the

parties to this action have been determined by this

Court.

(b) For a judgment quieting the title to the

land described in paragraph 2 hereof in the defend-

ants Roy Tibbals Wilson and Charles FE. Lakin as

their interests are there set forth in fee simple; de-

elaring that the plaintiff, and the Omaha Tribe of

Indians and its members have no right, title or inter-

est in said described land, or any part thereof; and

enjoining the plaintiff, said tribe and its members,

from asserting title to such lands and from inter-

fering in any way with the possession, use and occu-

80

pancy of said lands by defendants Roy Tibbals Wil-

son and Charles E. Lakin, and their lessees and as-

signs.

(ec) For such other relief as the Court may find

justified and for the costs of this action.

SWARR, MAY, SMITH & ANDERSEN

By /s/ Edson Smith

3535 Harney Street

Omaha, Nebraska 68131

Telephone No.; (402) 341-5421

KENNEDY, HOLLAND DeLACY

& SVOBODA

By /s/ Thomas R. Burke

Suite 1900, One First National Center

Omaha, Nebraska 68102

Telephone No.: (402) 342-8200

JOHNSON, STUART, TINLEY,

PETERS & THORN

By /s/ Jack W. Peters

501-511 Park Building

Council Bluffs. Iowa 51501

Telephone No.: (712) 322-4033

Attorneys for Defendants Row Tibbals

Wilson, Charles E. Lakin, Florence

Lakin

(Proof of service omitted in printing.)

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81

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA,

WESTERN DIVISION

No. C 75-4024

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROY TIBBALS WILSON, et al.,

Defendants.

ANSWER AND COUNTERCLAIM OF DEFENDANT

RGP, INCORPORATED, AN IOWA CORPORATION

For answer to Claim J of Plaintiff’s Complaint, the

Defendant RGP, Incorporated, an Towa Corporation,

states:

1. It admits the allegations of paragraph 1 of said

Complaint.

2. It denies that the Plaintiff owns all or any of the

land described in Paragraph 2 of said Complaint, but

admits that in 1867 when the T. H. Barrett Survey was

made, the land described as in Paragraph 2 of said Com-

plaint (but, of course, without reference to the 1943 Iowa-

Nebraska Compact Line or to the east or left bank of the

Missouri River) existed, not in Monona County, Towa,

but within the borders of the State of Nebraska on the

right or Nebraska hank of the Missouri River. It af-

firmatively alleges that said land, between the years 1867

and 1943, was eroded and washed away by the action of

the Missouri River as it moved in a westerly course and

said land therefore ceased to exist at the described loca-

tion, having been washed down the river. Between the

82

years 1867 and 1943, new land was created by the proc-

ess of accretion to the left or Towa bank of the Missouri

River, which accretions extended over all of the area of

the earth’s surface occupied in 1867 by the land described

in Paragraph 2 of Plaintiff’s Complaint. Said accretion

land, upon coming into existence, became the property of

the riparian owners on the Iowa bank of the Missouri

River to whose land it had aecreted. By mesne convey-

ances from said riparian owners or from persons who

obtained title from or against them, the Defendant RGP,

Incorporated, an lowa Corporation, became and is now

the owner in fee simple of portions of said accretion land

which fall within the borders of the tracts of land owned

by them and appropriately described by Iowa Section,

Township and Range numbers as follows:

RGP, Incorporated, an Iowa Corporation, is the

owner in fee simple of the following described land situ-

ated in Monona County, Iowa.

RGP, Incorporated, an Towa Corporation, is the succes-

sor in title to the above described lands from Raymond

G. Peterson, now deceased. Raymond G. Peterson leased

the above land to the Defendant, Otis Peterson, under

written lease dated March 1, 1957 for a term of 10 years,

which lease was then extended by an Extension Agree-

ment dated January 28, 1967 for an additional 10 years

or until March 1, 1977, and Otis Peterson is entitled to

possession of said land under said lease.

(Land description omitted in printing.)

3. It admits that the lands described in Paragraph

2 of the Plaintiff’s Complaint were in 1867 a part of the

Omaha Indian Reservation to which the United States

held title for the use and benefit of the Omaha Tribe of

—-~¢5 —-— <= ~@

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ee

83

Indians. However, it affirmatively alleges that said title

was extingnished when said land ceased to exist when

it was eroded away and washed down the river and this

answering Defendant denies the allegations of Paragraph

3 of Plaintiff’s Complaint.

4. It denies the allegations of Paragraph 4 of Plain-

tiff’s Complaint. This Defendant, and those through

whom it derived title, have, personally and by their ten-

ants, been in possession of their respective lands de-

scribed in Paragraph 2 of this Answer for more than 30

years, subject only to a brief invasion by members of the

Omaha Tribe of Indians in the Spring of 1973, which was

terminated by a Court Order, and a second invasion com-

mencing on April 2, 1975, which invasions have been re-

sisted by this Defendant to the best of its ability. Dur-

ing the above described period of 30 years or more, the

tillable land included in the tracts described in Paragraph

2 hereof has been cleared and rendered productive by

this answering Defendant and its predecessors in title.

The Defendant, Otis Peterson, as tenant of the RGP land,

is entitled to possession thereof and has been in posses-

sion thereof subject only to the interference with his pos-

session by certain members of the Omaha Tribe of In-

dians commencing April 2, 1975.

5. For Answer to Paragraph 5 of Plaintiff’s Com-

plaint, this Defendant admits that it claims title to the

lands as alleged in Paragraph 2 hereof and alleges that

its title and ownership are lawful and valid and that the

claims of the Plaintiff are null and void and of no effect.

6. This answering Defendant denies that the Plain-

tiff is entitled to any judgment as asserted in Paragraph

6 of Plaintiff’s Complaint and affirmatively alleges that

84

the Defendant RGP, Incorporated, an Iowa Corporation,

is entitled to a judgment quieting title in fee simple in it

to the land described in Paragraph 2 hereof as owned by

it and upholding its right to possession thereof as against

the claims of the Plain‘*iff and of the Omaha Tribe of

Indians, but subject to the rights of the Defendant, Otis

Peterson, under his lease above described. This Defend-

ant is entitled to an Order declaring that the United

States and the Omaha Tribe of Indians have no right,

title or interest in or to the Innds described in Pargraph

2 hereof and no right to the possession thereof.

7. This Defendant denies the allegations of Para-

graph 7 of Plaintiff’s Complaint and affirmatively alleges

that it will suffer irreparable injury unless judgment is

entered by this Court upholding its title and right to

possession of the lands described in Paragraph 2 hereof.

8. As a separate and additional defense, this an-

swering Defendant alleges that RGP, Incorporated, an

Towa Corporation, and its predecessors in title have been

in open adverse possession of the lands described in

Paragraph 2 hereof under color of title for more than

30 years prior to the filing of the Complaint in this ae-

tion by the Plaintiff; that prior to the filing of said Com-

plaint, the Plaintiff has not contested the ownership and

possession of said land by said Defendant and their

predecessors in title, but have aequiesced in the same;

that the Plaintiff by its geological survey, a part of its

Department of the Interior of which the Bureau of In-

dian Affairs is also a part, in 1966 established a map of

the area involved showing on said map the eastern bound-

ary of the Omaha Indian Reservation as being the Mis-

souri River as it existed in 1965; that relying on the

85

foregoing acquiesence and representations of the Plain-

tiffs, this Defendint and its predecessors in title have

cleared the land of trees and otherwise prepared it for

cultivation, installed irrigation equipment, dug drainage

ditches and paid taxes on said land, a!l invoiving great

expense to this Defendant and its predecessor in title.

Also, witnesses who had knowledge of the action of the

Missouri River in the vicinity of the land described in

Paragraph 2 of Plaintiff's Complaint and in Paragraph

2 of this Answer, and of what effect such action had with

respect to said land, have died, and due to the delay by

the Plaintiff in asserting its claim, said witnesses are

unavailable to testify. By reason of the foregoing, this

Defendant will be greatly prejudiced if the Plaintiff is

permitted to assert its claim effectively at this time, and

the Plaintiff by reason of its laches, is estopped from

claiming or asserting any title it might otherwise have in

said tracts described in Paragraph 2 hereof or in any

nart hereof.

ANSWER TO CLAIM IT

For Answer to Plaintiff’s Claim II, this answering

Defendant states:

9. It adopts and incorporates its Answers heretofore

made to Paragraphs 1 through 7 of Plaintiff’s Complaint.

10. It admits Paragraph 9 of said Complaint.

11. It denies that the purpose and effect of the Peti-

tion in Equity No. 18965 is to challenge the title and

possession of the United States and of the Omaha Tribe

of Nebraska to those lands claimed by Jackson and

Peterson, and denies that the United States is an indis-

86

pensable party to Equity No. 18965. It admits the other

allegations of Paragraph 10 of Plaintiff’s Complaint.

12. It denies the allegations of Paragraphs 11 and

12 of Plaintiff’s Complaint.

COUNTERCLAIM

For its Counterclaim against the Plaintiff, the De-

fendant RGP, Incorporated, an Iowa Corporation, alleges

as follows:

13. This Court has jurisdiction over this Counter-

claim by reason of Rule 13 (a) of the Federal Rules of

Civil Procedure.

14. This answering Defendant adopts and incorpo-

rates herein by this reference the allegations in their fore-

going Answer to Plaintiff’s Complaint. It further adopts

and incorporates herein by this reference its “Resistance

to Motion of Plaintiff for Preliminary Injunction”, and its

“Motion for Preliminary Injunction by Defendants Roy

Tibbals Wilson, et al.’? and renews the prayer thereof.

WHEREFORE, this answering Defendant prays that

judgment be entered as follows:

(a) Denying the Preliminary Injunction prayed for

by Plaintiff and granting this answering Defend-

ant a Preliminary Injunction enjoining Plaintiff,

the Omaha Tribe of Indians, their agents, em-

ployees, members and all other persons acting

under their direction, from interfering with the

possession of the lands described in Paragraph

2 hereof by this Defendant and Otis Peterson, the

tenant of this Defendant, until the rights of the

parties to this action have been determined by

this Court.

ANI i a

87

(b) For a judgment quieting title to the land de-

scribed in Paragraph 2 hereof in the Defendant

RGP, Incorporated, an Towa Corporation, in fee

simple; declaring that the Plaintiff, and the Oma-

ha Tribe of Indians and its members have no

right, title or interest in said land, or any part

thereof; and enjoining the Plaintiff, said Tribe,

and its members from asserting title to such

lands and from interfering in any way with the

possession, use and occupancy of said lands by

this Defendant and its lessees and assigns.

(c) For such relief as the Court may find justified

and for the costs of this action.

PETERS, CAMPBELL

AND PEARSON

By /s/ Peter J. Peters

233 Pearl Street

Council Bluffs, Iowa 51501

Tel: (712) 328-3157

Attorneys for Defendant RGP,

Incorporated, An Iowa Corporation

(Proof of service omitted in printing.)

88

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF [OWA

WESTERN DIVISION

No. C 75-4024

THE UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROY TIBBALS WILSON, CHARLES G. LAKIN,

FLORENCE LAKIN, R.G.P.. INCORPORATED, an

Iowa Corporation, HAROLD JACKSON, OTIS PETER-

SON, TRAVELERS INSURANCE COMPANY and the

STATE OF IOWA,

Defendants.

ANSWER OF DEFENDANT STATE OF IOWA

DIVISION I

For answer to claim I of plaintiff’s complaint the

defendant, State of Towa, admits, denies, and alleges as

follows:

1. Defendant admits the allegation contained in par-

agraph 1 of plaintiff’s complaint.

2. Defendant denies each and every allegation con-

tained in paragraph 2 of plaintiff’s complaint.

3. Defendant denies each and every allegation con-

tained in paragraph 3 of plaintiff’s complaint.

4. Defendant alleges that she is without knowledge

or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 4 of plaintiff’s

complaint and such allegations are therefore denied.

5. Defendant denies each and every allegation con-

tained in paragraph 5 of plaintiff’s complaint except that

89

defendant admits that she claims title to part of the lands

described in paregraph 2 of plaintiff’s complaint as al-

leged in paragraph 5 of plaintiff’s complaint and alleges

that plaintiff’s claims to title and ownership of the state’s

lands described in paragraph 2 of plaintiff’s complaint

are null and void and of no effect.

6. Defendant denies each and every allegation con-

tained in paragraph 6 of plaintiff’s complaint.

7. Defendant denies each and every allegation con-

tained in paragraph 7 of plaintiff’s complaint.

DIVISION II

For answer to plaintiff’s claim IT this answering de-

fendant denies, admits and alleges as follows:

8. Defendant adopts and incorporates her answers

heretofore made to paragraphs 1 through 7 of plaintiff’s

complaint.

9. Defendant alleges that she is without knowledge

or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 9 of plaintiff’s

complaint in that defendant never received a copy of

court record Equity No. 18965 and such allegations are

therefore denied.

10. Defendant alleges that she is without knowledge

or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 10 of plaintiff’s

complaint in that the defendant never received a copy of

court record Equity No. 18965 and such allegations are

therefore denied.

11. Defendant denies each and every allegation con-

tained in paragraph 11 of plaintiff’s complaint.

90

12. Defendant alleges that she is without knowledge

or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 12 of plaintiff’s

complaint in that defendant never received a copy of

court record Equity No. 18965 and such allegations are

therefore denied.

DIVISION JIT

13. Further answering, defendant avers that the

State of Iowa is a sovereign state of the United States

of America, admitted thereto in 1846 under 9 Stat. L.

117.

14. Further answering, defendant avers that the

lands described in paragraph 2 of plaintiff’s complaint

are part of the State of Iowa and that part of said lands

are owned by Towa as sovereign and said description is

attached as Exhibit A and hereby made a part hereof.

15. Further answering, defendant avers that the

State of Iowa owns the bed of the Missouri River be-

tween the thalweg and the ordinary high water mark on

the easterly side of said river, and any islands growing

up out of that portion of said riverbed and any abandoned

channel of that portion of said river.

16. Further answering, defendant avers that the

portion of land described by paragraph 2 of plaintiff’s

complaint which is owned by the State of Iowa and de-

scribed above is such an island and such abandoned river

channel lying on the easterly side of the thalweg of the

Missouri River and on the easterly side of the compact

line entered into between Iowa and Nebraska in 1942 and

approved by Congress in 1948, 57 Stat. L. 495.

a —_—_ rr

91

17. Further answering, defendant avers that the

western houndary of the State of Iowa was established

by Congress in 1943 and her rights and the rights of all

others including the United States are fixed thereby.

18. Further answering, defendant avers that the

United States may not by this action seek to abrogate

that act of Congress.

DIVISION IV

19. Further answering, defendant avers that the

changing of the channel and degradation of the Missouri

River which resulted in Ivy Island being no longer in the

river and the rest of Iowa’s land becoming abandoned

river channel were both caused by the plaintiff thereby

estopping plaintitf from claiming such land under an avul-

sion theory.

20. Further answering, defendant avers that plain-

tiff should not benefit from its action in moving the chan-

nel and causing its degradation.

DIVISION V

21. Further answering, defendant avers that the

State of Iowa has right and title in some of the lands

described in paragraph 2 of plaintiff’s complaint and

more specifically described in Exhibit A attached hereto

by reason of quit claim deeds executed to defendant State

of Iowa and filed and recorded in the Office of the

Monona County Recorder on May 25, 1965, Book 77 Land

Deeds page 233, and May 25, 1965, Book 77 Land Deeds

page 238.

92

99. Further answering, defendant avers that title

to any part of said lands described in paragraph 2 of

plaintiff’s complaint or more precisely described in this

answer which were a part of the Omaha Indian Reserva-

tion was extinguished when said land eroded away, ceased

to exist, and washed down the Missouri River and de-

fendant avers that her land was newly created on the

easterly side of said river by accretion, island building

«and degradation of the bed of the river.

DIVISION VI

COUNTER-CLAIM

For a counter-claim against the plaintiff the defend-

ant State of Towa alleges as follows:

23. This court has jurisdiction over this counter-

claim by reason of Rule 13 (a) of the Federal Rules of

Civil Procedure.

24. The defendant State of Iowa adopts by reference

its answers in paragraphs 1 through 22, above, as if

fully set forth.

25. An accurate legal description of the land owned

by the State of Iowa is annexed hereto and marked Ex-

hibit “A”,

WREREFORE, the defendant State of Iowa prays

that judgment be entered quieting title to the land de-

seribed in Exhibit “A’’, annexed hereto, in the defendant

State of Iowa in fee simpie, declaring that plaintiff, and

the Omaha Indian Tribe and its members have no right,

title or interest in said described land, cr any part there-

of; enjoining the plaintiff, said tribe and its members

ee ee

93

from asserting title to such lands and from interfering in

any way with the possession, use and occupancy of said

lands by the defendant State of Iowa, dismissing plain-

tiff’s complaint at plaintiff's costs, and granting such

other and further relief as to the Court may scem just.

RICHARD C. TURNER

Attorney General of Iowa

» CLIFFORD E. PETERSON

JAMES C. DAVIS

Assistant Attorneys General

/s/ Bennett Cullison, Jr.

P. O. Box 68

Harlan, Iowa 51537

Telephone: (712) 755-2192

Attorneys for Defendant State of Iowa

(Certificate of service and description of land omit-

ted in printing.)

94

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

Civil No. C-75-4024

UNITED STATES OF AMERICA,

Plaintiff,

Vs.

ROY TIBBALS WILSON, et al.,

Defendants.

PLAINTIFF’S REPLY TO COUNTERCLAIM OF DE-

FENDANTS ROY TIBBALS WILSON, CHARLES E.

LAKIN AND FLORENCE LAKIN

In response to the counterclaim found in paragraphs

14 and 15 of defendants’ answer, plaintiff states:

1. This court lacks jurisdiction to quiet title, in favor

of defendants, to lands held in trust for Indians by the

United States, 28 U.S. C. 2409a (Supp. IIT); F. R. Civ. P.

13 (d).

2. Plaintiff adopts each and every allegation con-

tained in the complaint and denies any of defendants’

allegations inconsistent therewith.

WHEREFORE, plaintiff prays that defendants’ coun-

terclaim be dismissed.

/s/ Evan L. Hultman

United States Attorney

/s/ Robert L. Sikma

Assistant United States Attorney

_

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ee OR ll ee Ne ole oe ee lee LP eh

95

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

Civil No. C-75-4024

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROY TIBBALS WILSON, et al.,

Defendants.

PLAINTIFF’S REPLY TO COUNTERCLAIM

OF DEFENDANT RGP, INC.

In response to the counterclaim found in paragraphs

13 and 14 of defendant’s answer, plaintiff states:

1. This court lacks jurisdiction to quiet title, in favor

of defendant, to lands held in trust for Indians by the

United States. 28 U.S.C. 2409a (Supp. IIT); F. R. Civ.

P. 13 (d).

2. Plaintiff adopts each and every allegation con-

tained in the complaint and denies any of defendant’s

allegations inconsistent therewith.

WHEREFORE, plaintiff prays that defendant’s coun-

terclaim be dismissed.

/s/ Evan L. Hultman

United States Attorney

/s/ Robert L. Sikma

Assistant United States Attorney

96

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

Civil No. C-75-4024

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROY TIBBALS WILSON, et al.,

Defendants.

ANSWER TO STATE OF IOWA’S COUNTERCLAIM

Now comes the United States of America, by and

through its attorney, and answers the counterclaim of the

State of Towa, which is contained in its amendment to the

State’s answer, as follows:

23. Admit.

24. Plaintiff admits that the State of Iowa adopts

by reference its answers contained in paragraphs 1

through 22 of the answer. Plaintiff denies the allegations

contained in paragraphs 14 and 15 of the answer, admits

the allegation in paragraph 16 that some of the lands

claimed by the State of Iowa are in an abandoned river

channel lying east of the easterly side of the present thal-

weg of the current Missouri River and east of the 1943

compact line, but denies all other allegations contained

therein. Plaintiff admits the allegation contained in para-

graph 17 of the answer insofar as it states that the

boundary of the State of Iowa was fixed in 1943, but de-

nies any implication that the title to the lands involved

en em te eres ~

97

in this litigation was thereby affected. Plaintiff also de-

nies the legal conclusion in paragraph 19 of the answer

which states that plaintiff is estopped from asserting its

claim. Plaintiff also denies the allegations contained in

paragraphs 21 and 22 of the answer.

25. Plaintiff denies that the State of Iowa owns the

land described in the State’s Exhibit A.

Respectfully submitted,

/s/ James J. Clear

Attorney

Department of Justice

Washington, D. C. 20530

Telephone: (202) 739-2445

Attorney for Plaintiff

United States of America

(Certificate of service omitted in printing.)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

Civil No. C-75-4024

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROY TIBBALS WILSON, et al.,

Defendants.

PLAINTIFF’S REPLY TO COUNTERCLAIM

OF DEFENDANT OTIS PETERSON

(Filed August 12, 1975)

In response to the counterclaim contained in para-

graphs 13-15 of defendant’s answer, plaintiff states:

98

1. This court is without jurisdiction to grant de-

fendant a possessory interest in lands held in trust for

Indians by the United States. 28 U.S.C. 2409a (Supp.

III); F. R. Civ. P. 13 (d).

2. Plaintiff admits that defendant, as alleged in

paragraph 5 of his answer to Claim I, which is incorpo-

rated by reference into paragraph 13 of his counterclaim,

has a lease with RGP, Inc., but denies that RGP, Inc., is

the owner of the leased land or has any authority to

lease said lands.

3. Plaintiff admits the allegations, contained ir para-

graphs 9 and 10 of defendant’s answer to Claim II, and

incorporated by reference into paragraph 14 of the coun-

terclaim, except insofar as they allege that defendant

and Harold Jackson were in lawful possession.

4. Plaintiff adopts each and every allegation con-

tained in the Complaint and denies any of defendant’s

allegations inconsistent therewith.

WHEREFORE, plaintiff prays that the counterclaim

be dismissed.

/s/ Evan L. Hultman

United States Attorney

/s/ Robert L. Sikma

Assistant United States Attorney

ee ee ee eres

—

99

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

Civil No. C-75-4024

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROY TIBBALS WILSON, et al.,

Defendants.

PLAINTIFF’S REPLY TO COUNTERCLAIM

OF DEFENDANT HAROLD JACKSON

(Filed August 12, 1975)

In response to the counterclaim contained in para-

graphs 13-15 of defendant’s answer, plaintiff states:

1. This court is without jurisdiction to grant defend-

ant a possessory interest in lands held in trust for In-

dians by the United States. 28 U.S.C. 2409a (Supp.

III); F. R. Civ. P. 13 (d).

2. Plaintiff admits the allegation, contained in para-

graph 5 of defendant’s answer to Claim I and incorpo-

rated by reference into paragraph 13 of the counterclaim,

that defendant has a lease with Roy Tibbals Wilson but

denies that Roy Tibbals Wilson is the owner of the lands

so leased or that he has any authority to lease said lands.

3. Plaintiff admits the allegations, contained in para-

graphs 9 and 10 of defendant’s answer to Claim IT and

incorporated by reference into paragraph 14 of the coun-

terclaim, except insofar as they allege that the defendant

and Otis Peterson were in lawful possession of the land

in dispute.

100

4. Plaintiff adopts each and every allegation con-

tained in the complaint and denies any of defendant’s

allegations inconsistent therewith.

WHEREFORE, plaintiff prays that defendant’s coun-

terclaim be dismissed.

/s/ Evan L. Hultman

United States Attorney

/s/ Robert L. Sikma

Assistant United States Attorney

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

NO. C 75-4026

OMAHA INDIAN TRIBE, organized Indian Tribe pur-

suant to the Act of June 18, 1934 (48 Stat. 984), as

amended, Plaintiff,

Vs.

HAROLD JACKSON and OTIS PETERSON, and the

DISTRICT COURT OF IOWA IN AND FOR MONONA

TY,

ae Defendants.

COMPLAINT FOR INJUNCTION, FOR A STAY

OF STATE COURT PROCEEDINGS

AND OTHER RELIEF

(Filed May 20, 1975)

COMES NOW the Omaha Indian Tribe, organized un-

der a constitution and by-laws ratified by the Tribe on

February 15, 1936, and approved by the Secretary of the

dn encetet aie Pelee Fe

re Seale ees Sees cee ong, 0 eet tat ne. Mae atl Ol at a he

Cental is ae EN ot CO ls

101

Interior, trustee for the Omaha Indian Tribe, on March

30, 1936, pursuant to Section 16 of the Act of June 18,

1934 (48 Stat. 984), as amended by the Act of June 15,

1935 (49 Stat. 378), and hereby alleges, avers and com-

plains that:

1. The United States is holder of the lands involved

herein, in trust for the Omaha Tribe of Nebraska, and

this Court has jurisdiction under 28 U.S.C. 1345 (see

attached Brief).

This Court also has jurisdiction under Title 28, Sec-

tion 2283, United States Code, as the relief sought, in

part, is a stay of the State Court proceedings outlined

herein. Further, the cause herein involves the Omaha

Tribe of Nebraska and certain Jowa defendants; that the

value of the lands involved exceeds $10,000.00, and juris-

diction is further present by reason of Title 28, Section

1332.

2. This action is being filed at this time after a

proper resolution has been passed by the Tribal Council

and after due and careful consideration by said body.

3. The above-named defendants Harold Jackson and

Otis Peterson, without any clear right or title, assert that

they will proceed by trespass, if they have not already

done so, or if they are not restrained by the Court, upon

the lands of the Omaha Indian Tribe, which lands are

now and have always been part of the Omaha Indians

Reservation, created pursuant to the Treaty of March

16, 1854 (10 Stat. 1043), all as surveyed by the Genera!

Land Office of the Department of the Interior in the

years 1867-68, said survey being the only official survey

of said land. Those lands are now and have always been

102

held in trust for the Omaha Indian Tribe by the United

States of America, which lands are now and have been

held by the Omaha Indian Tribe pursuant to the direc-

tion, assistance and cooperation of the Bureau of Indian

Avfairs, Department of Interior, United States of Amer-

iea, in peaceful, actual and constructive possession of

said lands, they having been fully posted and notice given

that those lands are now and have been part of the

Omaha Indian Reservation, and that any trespass upon

those lands is a clear violation of the criminal statutes of

the United States of America; attached hereto and made

a part hereof is a plat and legal description of the lands

in question, said plat and description being marked Ex-

hibit “A’’ and made a part of this complaint by refer-

ence, the lands being hereafter referred to as the Black-

bird Bend Area of the Omaha Indian Reservation.

4. The above-named defendants, Harold Jackson and

Otis Peterson, by their threats to trespass upon the Black-

bird Bend Area of the Omaha Indian Reservation, which

are held in trust for the Omaha Indian Tribe by the

United States of America, threaten to cause and will cause

immediate, irreparable damage to the Omaha Indian Tribe

if the aforesaid defendants, Harold Jackson and Otis

Peterson, carry out their threat to trespass on these lands,

and that their threat to trespass places in jeopardy the

lives and property of the Omaha Indian Tribe, who are

now and have been, all as averred above, in peaceful oc-

cupation of the land with the full cooperation and pro-

tection of the aforesaid agents of the United States of

America, the Commissioner of Indian Affairs, and his

staff. There is attached hereto and made a part hereof

a Memorandum of Law dated February 3, 1975, from the

103

principal law office of the Department of the Interior,

the Honorable Kent Frizzell, who has set forth in that

Solicitor’s Opinion as chief law officer of the Department

of Interior, and declared, among other things, as follows:

‘‘T have concluded for the reasons that follow that the

Bureau ’s position is legally correct and that the lands

in question have been a part of the Omaha Indian

Reservation since 1854, owned in trust for the Tribe

by the United States.”

A copy of the aforesaid opinion by the Solicitor, Kent

Frizzell, Chief Legal Officer of the Department of In-

terior, is attached hereto and made a part of this com-

plaint and marked Exhibit ‘“‘B”.

5. The above-named defendants, Harold Jackson and

Otis Peterson, filed an action in the District Court of

Towa in and for Monona County in furtherance of their

trespass and threatened trespass upon the land of the

Omaha Indian Tribe, and to threaten the peaceful occu-

paney and possession of the Omaha Indian Tribe and the

civil rights of each of the members of that Tribe did ob-

tain an order dated May 15, 1975, from the aforesaid Dis-

trict Court of Towa in and for Monona County purporting

to restrain the following individually-named persons, not

the Omaha Indian Tribe nor the United States of Amer-

ica, trustee, said individually-named persons being Ed-

ward L. Cline, Dan Webster, Bruce Marr, William Web-

ster, Joe Fremont and Louis Webster, Jr., from entering

upon certain lands and interfering with the farming of

those lands by the above-named defendants, and further,

did on May 16, 1975 obtain a supplemental order, Ex. C.,

purporting to restrain all persons from entering on said

lands, said lands being described in the aforesaid order

104

dated May 15, 1975, and are not the same lands compris-

ing the Blackbird Bend Area of the Omaha Indian Reser-

vation, all as described in the attached plat and descrip-

tion, Exhibit “A”, of this complaint, but rather are lands

described by an illegal and unauthorized survey made in

clear violation of the criminal laws of the United States

of America, particularly 25 U.S.C. 180.

6. Neither the order of May 15, 1975 nor the one of

May 16, 1975 are directed to nor do they in any way per-

tain to the Omaha Indian Tribe nor to the United States

of America, trustee for the Omaha Indian Tribe, nor do

they relate exactly to the Blackbird Bend Area of the

Omaha Indian Reservation, and are therefore null and

void and of no force and effect by reason of the want of

jurisdiction in the aforesaid District Court of Iowa in

and for Monona County over either the Omaha Indian

Tribe or the United States of America over the lands

comprising the Blackbird Bend Area of the Omaha In-

dian Reservation. The aforesaid Omaha Indian Tribe and

the United States of America, trustee, are indispensable

parties to any action involving the Blackbird Bend Area

of the Omaha Indian Reservation, and therefore, the

above-mentioned orders, as averred above, are null and

void and of no force and effect, and the entry upon the

Blackbird Bend Area, as threatened by the above-named

defendants, Harold Jackson and Otis Peterson, pursuant

to the aforesaid null and void order of May 15, 1975, or

the order of May 16, 1975, would constitute a trespass

upon those lands in clear violation of the rights of the

Omaha Tribe and the criminal statutes of the United

States of America, trustee for the Omaha Indian Tribe.

105

7. That the United States of America has filed a

quict title action in this Court, No. C-75-4024, asking for

injunctive relief and the quieting of title; it is the strong

belief of the Omaha Tribe of Nebraska, as set out in the

Resolutions and Affidavit attached hereto, Ex. D, that

said action is untimely and is in effect a conduit to per-

mit and allow the defendants to retake possession of the

lands involved during the extended period involved in a

quiet title action; said quiet title action was filed over

the protests of the Omaha Tribe of Nebraska and should

not be entertsined in any other light by this Court. The

Tribe is now in possession and should be permitted to re-

tain said possession, as the lands are clearly theirs.

8. That this plaintiff will be irreparably damaged

if the Stay is not issued and if the injunction is not per-

mitted by this Court.

WHEREFORF, the plaintiff prays for:

1. A stay of the injunction and the supplemental

injunction issued in the District Court of Towa in and

for Monona County under Title 28, Section 2283, United

States Code, restraining the Court, Monona County offi-

cials and the defendants herein or any other parties from

enforcing or attempting to enforce said injunction.

2. For a preliminary injunction maintaining the

Omaha Tribe in possession of the lands involved herein

until the rights of the parties can be determined by this

Court.

3. For a permanent injunction maintaining the

Omaha Tribe of Nebraska in possession of their rightful

lands.

106

4. For relief of this plaintiff of any ex parte rul-

ings or orders that it does not support in cause No. C-

75-4024 now pending in this Court.

5. An order of this Court setting a hearing and

providing for notice to the defendants of said hearing.

6. For such other relief as the Court may find justi-

fied.

O’BRIEN & O’BRIEN

By /s/ John T. O’Brien

916 Grandview Boulevard

Sioux City, Iowa 51101

Ph, (712) 255-0147

Attorneys for Plaintiff

EXHIBIT B (Exhibit A omitted in printing.)

UNITED STATES

DEPARTMENT OF THE INTERIOR

Office of the Solicitor

Washington, D.C. 20240

SEAL

In Reply Refer To:

February 3, 1975

Memorandum

To: Commissioner of Indian Affairs

From: Solicitor Kent Frizzell

Subject: Proposed Secretarial Boundary, Blackbird Bend

Area, Omaha Indian Reservation, Iowa and Ne-

braska

By memorandum of October 15, 1974, the Acting Deputy

Commissioner asked this Office to review a proposed Sec-

retarial proclamation concerning part of the eastern

boundary of the Omaha Indian Reservation and the own-

i at ll + te

107

ership of approximately 3,190 acres of land, presently

located within the States of Iowa and Nebraska.

The Bureau had concluded as a matter of policy that

the proclamation should be issued, recognizing that the

land in question is, and has been since 1854, within the

boundaries of the Omaha Indian Reservation, owned by

the United States in trust for the Omaha Tribe.

I have concluded, for the reasons that follow, that the

Bureau’s position is legally correct, and that the lands

in question have been a part of the Omaha Indian Res-

ervation since 1854, owned in trust for the Tribe by the

United States. Rather than proceeding by Secretarial

proclamation, I recommend that we request the Depart-

ment of Justice to file appropriate legal actions quieting

title to these lands in the United States in trust for the

Tribe. If you concur, please advise me and we will pro-

ceed forthwith.

My more detailed legal analysis follows.

“Blackbird Bend” is a land area of some 3,190 acres,

presently located in the States of Iowa and Nebraska.

Originally, these lands were an oxbow area, all on the

west bank of the Missouri River. The center line of that

river forms the reservation boundary.' The general legal

doctrine is that a riparian landowner has title to lands

which gradually accrete to his property. But a sudden

“avulsive” change freezes all land titles as of the time

immediately before it occurs. I have reviewed the facts

as investigated by the Bureau, and conclude as it did that

1 In terms of natural fluctuations, the river has vacilated sig-

nificantly since 1854, while the Blackbird Bend Area itself

has remained remarkably stable.

108

the Blackbird Bend Area was separated from the west

bank of the Missouri River by an avulsive change. <Ac-

cordingly, the Tribe retains full equitable title to the lands

in question.

A. Establishment of the Omaha Reservation

The United States negotiated a treaty with the Omaha

Tribe on March 16, 1854, which authorized the establish-

ment of the present Omaha Reservation. 2 Kappler, In-

dian Affairs, Laws and Treaties, 611-14; 10 Stat. 1043.

The Omaha Tribe ceded to the United States all of its

land,

. south of a line drawn due west from a point in

the center of the main channel of said Missouri Riv-

er due east of where the Ayoway River disembogues

out of the bluffs, to the western boundary of the

Omaha country ...2 Kappler, supra, at 611.

The remaining Omaha land north of this line was to be

set aside for a reservation, subject to the approval of

the Tribe. According to a letter dated May 11, 1855,

from the Secretary of the Interior to the Commissioner

of Indian Affiars, the Omahas rejected the proposed loca-

tion of the reservation. Exercising their prerogative

under the 1854 treaty, the Tribe selected the present res-

ervation in the area of the Blackbird Hills instead. Be-

cause the actual site of the reservation had not been

finalized as of the date of the 1854 treaty, no precise de-

scription of its boundaries was included in the treaty.

Distinct boundaries were established though, as evidenced

by the Congressional purchase in the Treaty of March 6,

1865 of the northern part of the reservation for the Win-

nebago Indians:

The Omaha Tribe of Indians do hereby cede, sell

and convey to the United States a tract of land from

109

the north side oftheir present reservation, vis: eom-

mencing at a point on the Missouri River four miles

due south from the north boundary line of said res-

ervation, thence west ten miles, thence south four

miles, thence west to the western boundary line of

the reservation, then north to the northern boundary

line thence east to the Missouri River, and thence

south along the river to the place of beginning. 2

Kappler, supra, 872; 14 Stat. 667.

The first attempted official survey of the Omaha Reserva-

tion was in the spring of 1855 by Deputy Surveyor Wal-

lace Barnum. No copy of the plat of this survey has been

located. The earliest existing survey of the reservation’s

boundaries was completed in 1866-67. During April and

May of 1866, Deputy Surveyor Theodore Barrett followed

the field notes of the previous Barnum expedition. The

resulting Barrett survey is the earliest official survey

for the Blackbird Bend Area. Inspection of the Barrett

survey clearly shows that in 1866, the Blackbird Bend

oxbow was within the exterior boundary of the Omaha

Reservation. There is no other survey which conflicts

with the Barrett survey. The only possible conclusion

is that the Blackbird Bend Area was within the original

boundaries of the reservation.

B. Subsequent Events

I have concluded that no subsequent events altered the

reservation boundaries or title to the land. I will discuss

in order of their occurrence those events which might be

thought to have had such an effect on the Omaha Reserva-

tion.

110

1. Iowa and Nebraska Statehood Acts

The general rule is that Indian property rights are un-

affected by the admission into the Union of states which

include reservations within their boundaries. The Su-

preme Court in United Siutes v. Winans, 198 U.S. 371,

382 (1905), rejected the contention that ‘‘. . . the [treaty]

rights conferred upon the Indians are subordinate to the

powers acquired by the state upon its admission to the

Union.’’ Iowa was admitted into the Union in 1846, eight

years before the treaty establishing the Omaha Reserva-

tion. Act of December 28, 1846, 9 Stat. 117. Iowa’s con-

stitution sets out its western-most jurisdictional boundary

as the:

... middle of the main channel of the Missouri River;

thence up the middle main channel, of the said Mis-

souri River to a point opposite the middle of the main

channel of the Big Sioux River ... 1 Iowa Code

Ann. 91.

The 1804 Lewis and Clark map, the 1851 official survey of

the State of Iowa, and the 1875 map of Monona County,

Towa, all show the Blackbird Bend oxbow’s location on

the western bank of the Missouri River—beyond the jur-

isdiction of Idéwa.

Nebraska became a territory shortly after the 1854 treaty,

Act of May 30, 1854, 10 Stat. 277. That Act expressly pre-

served the treaty rights of the Indian Tribes within the

territory, and reaffirmed the Federal Government’s ple-

nary power to deal with the Indians.’

2 “. . . Provided further, that nothing in this Act contained

shall be construed to impair the rights of person or prop-

erty now pertaining to the Indians in said territory, so long

as such rights remain unextinguished | treaty between the

United States and such Indians...” /d. § 1.

Sar EE

a a ee ne

—- os

a a

= -

a ee

eee

———

ene at

a en

jo. ae

111

This act reaffirmed the Omaha Tribe’s right to the Black-

bird Bend Area and rebuts any suggestion that the act

contaiued a Congressional modification of the Treaty of

1854. Similarly, the Nebraska Statehood Act lacked ex-

plicit or implicit changes in that Treaty. Act of April 19,

1864, 13 Stat. 47. Thus, while the Omaha Reservation was

located within the delineated boundaries of Nebraska, its

trust status as federally protected land remained un-

changed. Unaffected by the statehood of either Iowa or

Nebraska, the boundary of the Blackbird Bend Area, as

surveyed in 1867, remained intact.

2. The Allotment Acts

The Allotment Act of August 7, 1882, 22 Stat. 341, carved

off a portion of the western end of the Omaha Reserva-

tion and opened it up for sale and settlement. Since Black-

bird Bend is located on the reservation’s eastern edge, it

was not affected by this cession of land. However, Section

5 of the Act did extend to Blackbird Bend by proclaiming

that the remaining unceded land be allotted to individual

Indians, any surplus being patented to the Omaha Tribe

under a trust period of 25 years. An amendment to the

Act of 1882 was enacted on March 3, 1893, 27 Stat. 612,

which further reduced the amount of surplus tribal land

through additional allotments. Finally, under the Act of

June 25, 1910, 36 Stat. 855, the remaining surplus lands

of the Omaha Tribe were authorized to be sold.

Despite the above authorizations for sales and allotments,

the Blackbird Bend oxbow has primarily remained un-

allotted tribal land to this day. Of the few allotments that

were made, the vast majority were relinquished back to

the Tribe for more suitable allotments outside the oxbow.

112

Only a small section of the Blackbird Bend Area was ever

allotted and then patented to non-Indians, and title to that

land is not being disputed.’ In any event, the recent case

of Mattz v. Arnatt, 412 U.S. 481 (1973), rejected the claim

that the opening of a reservation for settlement reduced

or eliminated the reservation’s boundaries. Accord, United

States v. Celestine, 215 U.S. 278 (1909).

The only permissible conclusion, therefore, is that the

enumerated Allotment Acts had no effect on the title to

the Blackbird Bend Area.

3. The 1943 Boundary Compact Between lowa

and Nebraska

The original common boundary of Iowa and Nebraska is

defined by the location of the middle of the main channel

of the Missouri River. Act of December 28, 1846, 9 Stat.

117; Act of April 19, 1864, 13 Stat. 47. The Compact of

1943 represented an attempt by the two states to settle

their boundary disputes once and for all. The Army

Corps of Engineers had drawn up plans to stabilize the

Missouri River through an extensive channelization pro-

ject. The Compact of 1943 designated the middle of the

main channel of the proposed, rerouted Missouri River as

the new boundary between the two states. Because of

World War II, the Corps’ project was postponed. When

it was resumed in 1948, the proposed channel was rede-

signed—changing the location of the river from that relied

upon in the 1943 Compact. Thus, the attempt to clarify

3 See generally Plate 19, “Omaha Indian Reservation Boundary

Determination—Missouri River—Blackbird Bend Area”, E. M.

Clark and Associates, Summary Report of September 16,

1974.

ee ee ee

113

the boundary in 1943 ended in the utter confusion in 1948.

The two states were left with a 1943 boundary line that

bore little relationship to the new location of the Missouri

River. Indeed, the 1943 line has never been accurately

pin-pointed. However, the Bureau’s approximation of the

1943 boundary shows that the Blackbird Bend Area of the

Omaha Reservation is now located in Iowa.

It is my opinion that the 1943 Compact had no effect on

the Omaha Tribe’s right to Blackbird Bend. Congres-

sional assent to the Compact cannot be considered evidence

of a Congressional intent to modify the boundary and

proprietary rights of the 1854 treaty. The Compact

Clause of the Constitution, Article I, § 10, cl. 3, was added

as a check against the erosion of federal powers by the

compacting states. Virginia v. Tennessee, 148 U.S. 503

(1893). Congressional approval of a compact merely indi-

cates that it contains no objectionable usurpation of the

powers assigned to the national government. Pennsylvania

v. Wheeling and Balmont Bridge Co., 59 U.S. 421, 433

(1855). It does not serve to make the compact a law of

the United States. Henderson v. Delaware River Joint

Toll Bridge Commission, 562 Pa. 475, 66 A. 2d 843; cert.

denied, 536 U.S. 856 (1949). The 1943 Compact does not

mention the Omaha Reservation or the 1854 treaty. The

approval of such a compact can in no way be construed as

satisfying the requirement that takings of Indian trust

property must be specifically authorized by Congress.

E.g9., Menomlnee Tribe v. United States, 391 U.S. 404

(1908) ; United States v. Santa Fe Pacific R. R., 314 U.S.

339 (1941). Moreover, the Compact itself provides that

titles good in Nebraska will be unimpaired by the juris-

dictional shift to Towa. 1 Iowa Code Annotated 85, 89.

114

The only permissible conclusion is that the Omaha Treaty

rights to the Blackbird Bend Area—as delineated by the

1867 survey—are as valid in lowa as they were in Ne-

braska.

4. The Rechannelization of the Missouri River

As indicated above, the Army Corps of Engineers under-

took a program in the 1940s to rechannelize the Missouri

River to reduce flooding and to stabilize the location of

the river. The rechannelization had the effect of cutting

the Blackbird Bend oxbow off from the rest of the reserva-

tion. The oxbow became part of the eastern bank of the

Missouri River for the first time. Not only had it shifted

to Iowa’s jurisdiction under the 1943 Compact, but geo-

physically, it beeame contiguous with the eastern bank due

to the cessation of flow around the oxbow.

A central tenet of property law is that avulsive changes

in the course of a river leave title to the riparian lands

unaffected. Philadelphia Co. v. Stimson, 223 U. S. 605

(1912); Nebraska v. Iowa, 145 U.S. 853 (1891); Arkansas

v. Tennessee, 246 U.S. 158 (1917). The court in Philadel-

phia Co, stated:

It is when the change in the stream is sudden or

violent, and visible, that the title remains the same.

It is not enough that the change may be discerned by

comparison at two distinct points of time. It must be

perceptible when it takes place. /d., at 624.

This test for avulsion has been applied to man-made, as

well as to natural, shifts in a river’s bed. Anderson-Tully

Company v. Walls, 266 F.Supp. 804 (1967). The abrupt

diversion of the Missouri River across the base of the

Blackbird Bend oxbow was visible and perceptible. Under

115

the authority of Philadelphia Co., supra, and Nebraska v.

Iowa, supra, the rechannelization project was avulsive in

nature. Accordingly, the treaty rights to the Blackbird

Bend Area remained unchanged. Title continued in the

United States, in trust for the Omaha Tribe.

5. Adverse Possession of the Blackbird Bend Area with-

in the 1867 survey

Once the oxbow of Blackbird Bend was severed from the

rest of the reservation, non-Indians along the former

eastern bank of the river moved onto the land without

color of title. Those farmers from Iowa, no longer sep-

arated from the Blackbird Bend Area by the Missouri

River, began planting and farming the land in disregard

of the treaty rights of the Omahas. The trespassers ap-

pear to claim title through adverse possession, quiet title

actions, and deed transfers among themselves. The courts

have consistently rejected attempts to adversely possess

Indian land. United States v. 7,405.3 Acres of Land in

Macon, Clay, and Main Counties, 97 F. 2d 417 (C.C. A.

N. C. 1856); United States v. Russell, 261 F. Supp. 196

(D. C. Okla. 1965). Private parties cannot claim adverse

possession against lands held by the United States. Proc-

tor v. Palatur, 15 F. 2d 974 (C.C. A. Wash. 1926). There

is no way that the trespassers could get valid title to the

Plackbird Bend Area under the doctrine of adverse pos-

session.

Similarly ineffective were the quiet title actions brought

In Iowa’s courts. The major suit in this group was in

Equity No. 17400, Charles E. Lakin v. State of Iowa, et al.,

decree filed with Monona Co. Clerk of District Court on

November 15, 1963. State courts have no jurisdiction

116

over controversies concerning title to Indian allotments

during the trust period. McKay v. Kalyton, 204 U.S. 458

(1907); Caesar v. Kraw, 71 Okla. 233, 175 P. 927 (1920).

Equally defective for these suits is the failure to include

the United States as an indispensable party. Fontenelle

v. Omaha Tribe of Nebraska, 430 F. 2d 143 (6th Cir.

1970). The conspicuous omission of the United States as

a party emphasizes the spurious nature of the suits.

It is also relevant to note that Iowa did not add the

Blackbird Bend Area to its tax rolls until 1969. This

was 26 years after the 1943 Compact shifted Iowa’s boun-

dary to encompass the Blackbird Bend Area, and at least

10 years after rechannelization made the area contiguous

with the original land mass of Iowa. The relative late-

ness of this action is at least some evidence that Iowa,

until recently, may have considered the Blackbird Bend

Area tax-exempt tribal land.*

C. Legal Conclusions and Recommended Action

The title claims of the present occupants of Blackbird

Bend can be summarized quite succinctly: they had no

rights in the land to begin with and they have no rights

in it now. Title searches have failed to discover any pat-

ents from the United States to the present occupants. The

doctrine of adverse possession is inapplicable and tiie

quiet title actions have lacked proper jurisdiction. ‘Tlie

1943 Boundary Compact and the Missouri River rechan-

nelization -project have left the 1854 treaty rights intact.

Only one legal conclusion is permissible: title to the

4 The Supreme Court has ruled that tribal land within a reser-

vation is free from state taxation. The Kansas Indians, 5 Wall.

737 (1866).

117

Blackbird Bend Area within the 1867 survey is still held

by the United States in trust for the Omaha Tribe.

Eviction proceedings should be initiated under 25 U.S. C.

§ 180, as should actions to quiet title in the Omaha Tribe

and to recover monetary damages in the form of back

rentals.

EXHIBIT C

IN THE DISTRICT COURT OF IOWA

IN AND FOR MONONA COUNTY

Kquity No. 18965

HAROLD JACKSON and OTIS PETERSON,

®

Plaintiffs,

vs.

EDWARD L. CLINE, et al.,

Defendants.

ORDER DIRECTING ISSUANCE OF

TEMPORARY WRIT OF INJUNCTION

(Filed May 16, 1975)

NOW on this 16th day of May, 1975, this matter

comes -before the Court on

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