Appendix — Wilson v. Omaha Tribe
Supreme Court brief1979
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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 —-— <= ~@
o_o -- —- oo" -o -
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
_
Se ee th ot ok 6 ce
ee ee
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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