# Appendix — Wilson v. Omaha Tribe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1437%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 442 U.S. 653 ## Text na pms t, U, LP7"e ‘. Le D 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.) a ee —— ee eee e-em =e +. gt sg nq eg — eg ee ~ 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 —-— pote 2 diit Sec seesssiomenie, 217 And if I may state, Tribe’s Exhibit 91— Q. Lift that up, would you? A. —which is a sample labelled as channel fill was taken (R. 980) from the 1875 abandoned channel. It’s organic rich clay material with a little sand and silt. On the right bank of the 1875 river, which would be west of the river, the deposits are principally point bar deposits. (R. 1002) Q. Would you move back so the Court ean observe? Would you go around on the other side? A. If I may repeat, extending from the northwest quarter of Section 28, Township 84 north, Range 46 west, diagonally across Section 28 across the northeastern most corner of Section 33, along the western boundary of Sec- tion 34, diagonally across the southeast corner of Section 33, all of Township 84 north, Range 46 west and, then, westward across the top of Section—northern end of Sec- tion 5 in Township 83 north, 46 west. That high bank which cireumscribes the 1875 river is present and visible today. Q. Would you state the phenomenon, the natural monuments and the physical phenomenon within that arch concerning which you just testified? A. Below the high bank following the same arch are clay deposits which represent the water, but with clay deposits below that represent the position of the 1875 river channel. These clay deposits—clay soil can be identified on the surface ground today and can be fol- 218 lowed continuously except where man has altered it with artificial fill, completely around that arch to the position approximately at the northwest corner of Section 5, Town- ship 84 north, Range 46 west. (R. 3181) By Mr. Veeder: Q. Now, from the standpoint of the open end of the 1875 river, what does that mean to you as a mapmaker, and he stipulated to your being an expert on that? Go ahead and state what that means. A. They didn’t know what happened to the west of that open end, the surveyors who prepared Exhibit 79. Q. They did not observe it; did they? A. They did not observe it. Q. Would you also state, based upon the unmapped areas of Secticns 29 and 30, whether it is possible to discern whether accretions attached to and became a part of that particular area? Is that possible to deter- mine from that map? (R. 3182) A. No, sir. Q. Now, why is that? A. It was not mapped at that time. Q. So that you have a blank there at that time? A. We havea blank. You have no geomorphic form. I have no evidence indicated on that map from which I could determine what the origin of that particular area was. * * 4 ee ee ge ee. ee 2 25 219 (R. 3194) Q. What kind and type of investigation did you make in connection with the actual investigation and determination of the location of the northern high bank as it exists today? A. I personally have walked all along that high bank, and, of course, at the time of my investigations I had the U. S. Corps of Engineers’ 1974 topographic map, so that I could identify my position and I could identify the present high bank and was able to establish that the present Iowa high bank is as depicted on those recent exhibits, the topographic maps. (R. 3197) Mr. Veeder: And that’s all I want to be sure of. You had the condition before, Your Honor, and I just wanted to clear it up. Now, Dr. Robinson, relat- ing, again, to your investigations along the northerly high bank, what—based upon your soil surveys, based upon your analysis of the geology there, your drillings, the core analyses you have made working with Dr.— working with Mr. Elmer Clark in locations, will you state into the record whether in your opinion there has been a alluvion or (R. 3198) alluvium, whatever one you want to use, attached to the northerly high bank by action of the 1912 river or any other river? A. No. The Court: No, you will not state it? The Witness: No, there has been no alluvion at- tached to the northern high bank. Mr. Veeder: And based upon your investigations, Dr. Robinson, what—do you have an opinion as to the mode 220 and method that the phenomena of the departure of the 1912 plus river—how did that take place? A. The 1912 plus river made a sudden and abrupt change from the position along the northerly high bank to a position somewhere to the south of the trees that are shown and taken from Tribe’s Exhibit 105-A, and it was a sudden and abrupt change and that river had to move farther south in that change. Q. Now, why do you say that, Dr. Robinson? A. Had there been a slow and imperceptible move- ment of river eroding its banks—southern banks and de- positing alluvium against the northern high banks, that erosion would have destroyed those trees which were there until—one group is still there, but the other one, the tree which is labeled as an age of 1909 was cut down re- cently. So, the river was in the position against the northern high bank (R. 3199) sometime after 1912, which is a younger date than the years for those trees of 1904 and 1909. It had to leave there by a sudden change which puts the river to the south of those trees and left this abandoned channel which is in evidence on the ground today. Q. Now, what—you say there was no deposition of alluvium. What are the deposits that are presently at the foot of the lower high bank—the northern high bank— the northern high benk and the kind and type of de- posits that are situated there today based upon your per- sonal knowledge? A. Based on personal knowledge which included drilling a series of holes down through the materials in 221 the surface, the material at the base of the northern high bank consists, principally of clay and silt with a few stringers of sand. Material which is typical of deposits that are found in oxbow lakes or abandoned ch Channel fill deposits. ee *. (R. 1721) RAUL McQUIVEY Q. And you have indicated that I 1906? nee recall, post- A. Yes. Q. Now, Mr.—Dr. McQuivey, did you make any in- vestigations at or near the foot of that high bank in making your soil investigations? A. Yes. I drilled holes 46 and 45 in Section 19 Range 46 West, Township 84 North, and found theese samples to be primarily made up of silt and clay. Again we could only go a short depth in that area before a ran into the water table. But approximately ten to twelve feet we found silt clay. (R. 1722) Q. Now, if you would just swing on down to the easterly bank, the extremity there, did you make similar investigations at the foot of that bank? A. Yes, I did. Drill hole number two is just off the Section corner 28, 27, 33 and 34 of Township 84 North, Range 46 Wesi, this far easterly hole. And that hole went to a depth of twenty feet. And we found nothing in that hole but silt and clay. 222 Q. And what was indicative to you in regard to your drilling (R. 1723) at the foot of the northerly bank and the easterly high bank respecting the occupants there —oecupancy there of the Missouri River? A. Yes. As I testified, one of the reasons for tak- ing many of these holes was to determine if that was a major old channel. And indeed, the soil sample indicates that there was a deposit or deposition of approximately twenty feet of silt and clay. (R. 1740) JUNE GEADELMANN, having been called as a witness on behalf of the Defend- ants, having been first duly sworn, was examined and testified upon her oath as follows: Direct Examination By Mr. Smith: Q. Will you state your name, please, Mrs. Geadel- mann? A. My name is June Geadelmann. Q. And where do you live? A. I live in Mapleton, Iowa. Q. Do you hold some County office in Monona County? A. Yes. I am County Auditor for Monona County. eee — Re Sm a EE we or ee ee ms a CE OR 5 __ ——————e 223 (R. 1765) JACK VIRTUE, the witness herein, being duly sworn, testifies as follows: The Court: How do you spell your name? The Witness: V-I-R-T-U-E. (R. 1766) The Court: Thank you. Direct Examination By Mr. Smith: Q. Would you state your name, please? A. Jack V. Virtue. Q. And where do you live, Mr. Virtue? A Onawa, Iowa. (R. 1937) By Mr. Veeder: Q. Mr. Virtue, in light of your background and his- tory in connection with this area that is here involved, you have a direct and immediate and a monetary interest in the outcome of this litigation of Tribe vs. Lakin, Wil- son, Iowa, et al.; you have a direct and (R. 1938) immedi- ate and personal monetary interest in the outcome of the litigation entitled United States v. Lakin, Wilson, Iowa, et al.; right? A. Yes. Q. So it is important to you personally how this case is resolved? 224 A. Factually, I hope. Q. What? A. Factually, I hope. Q. * And monetarily? A. Weil, the land that I have an interest in is not worth that much. But it is a duck hunting spot. Q. But don’t you have certificates out in regard to abstracts of title and also certifications as to the correct- ness of surveys? A. Yes. Q. You do? A. (Witness nodding head in an affirmative man- ner.) Q. So what you have said covers it; you have a per- sonal interest? A. Yes. Mr. Veeder: I have no further questions. (R. 1955) Mr. Clear: M8 is the description con- tained in the deed between Charles Lakin and the State of Iowa? The Witness: Yes. Mr. Clear: And NS is the description contained in the deed between the Petersons and who? Mr. Cullison: Lakin—or Peterson—It is a quit claim deed of Peterson to the State of Iowa. 225 Mr. Clear: And the third is just—TS8 is just a plain legal description? Mr. Cullison: I’ll state for the record that TS8 is a copy of the legal description contained in the States’ An- swer and Counterclaim. (R. 1957) Mr. Cullison: I wanted to show, first of all, the legal description of the land claimed by the State of Iowa in its Answer and Counterclaim. Exhibit 0 is for the purpose of displaying to the Court what parcel of land is involved. The functional legal description is con- tained in the Answer and Counterclaim of which TS is a copy. The Court: I see. Oh, I can see no prejudice to the interest of anyone to allow those in, so they will (R. 1958) be received. Mr. Cullison: I have no further questions. (R. 1966) RAYMOND L. HUBER, after having been first duly sworn, was examined and testified as follows: Direct Examination (R. 2141) Q. All right. Now, taking a look at Tribe’s Exhibit 105, which is the 1923 river, do you have an opinion, Mr. Huber, as to whether or not the land that is located from the northerly high bank to the south to 226 where the river is positioned in Section 23, 24 and 19 in Township 24 North, Ranges 10 and 11 East, whether or not that land is all accretion to the Iowa high bank? Mr. Veeder: I object to the asking of the opinion. Go ahead if he has an opinion. The Court: You can answer yes or no. A. Yes, it is. | By Mr. Peters: Q. Yes, you have an opinion? A. Yes, I have an opinion. Mr. Veeder: I object. No foundation whatever. This witness is not qualified to testify in this regard. I inter- pose objection of opinion under the circumstances. The Court: Overruled. * * (R. 2148) By Mr. Peters: Q. If there was any remnant of the Barrett meander lobe as surveyed in 1967 still left— The Court: 1867? Mr. Peters: 1867, I’m sorry. By Mr. Peters: Q. —still left by 1928, would there be vegetation on the land forms that remain which would indicate that the land form was intact still, the remnant of the old meander lobe of the 1867 Barrett Survey? A. You could identify it as such if it were high land, area of high land as equally high as the original high land 227 included in the Barrett Survey, or if it had timber on a high land area that w [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1437%3A05. Public record. Not legal advice.