Petitioners Brief — United States v. Clarke

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No. 78-1693

Ju the Supreme Court of the United States

OCTOBER TERM, 1979

UNITED STATES OF AMERICA, PETITIONER

VU.

GLEN M. CLARKE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. MCCREE

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

HARLON L. DALTON

Assistant to the Solicitor General

DIRK SNEL

CARL STRASS

Attorneys

Department of Justice

Washington, D.C. 20530

op, SETTER LE ee

RE ga re ARS LT Sy ee PS

Question presented -......2..........-.-ceccecececeeeececeeeeees

pentetes involved .......................................

Statement

Summary of argument 20.00.00... cccccecccceececeeee.

Argument:

I. 25 U.S.C. 357 does not authorize a state

to condemn a road across an Indian

allotment without bringing a proceeding

in a United States District Court _.....

Conclusion

Cases:

The term “condemnation” means a

judicial proceeding to acquire prop-

erty brought by an entity possessed

of the power of eminent domain...

Reading 25 U.S.C. 357 to authorize

takings by seizure leads to illogical

NE iiettceusnanndaie.

Reading 25 U.S.C. 357 to authorize

takings by seizure would impose

substantial burdens on the federal

government and substantial hard-

ships on Indian allottees _.............

CITATIONS

Aguchak v. Montgomery Ward Co., 520

P.2d 1852 ........

Cases—Continued Page

Board of County Comm’rs v. Seber, 318

ST =U. pieniicinceniicnetinineeaieteendentiatigilaasinaeiahics 23

Bryan v. Itasca Co., 426 U.S. 373 -.......... 20

Calista Corp. v. Mann, 564 P.2d 58 .......... 21

Charnley v. Shawano Water Power &

River-Improvement Co., 85 N.W. 507.... 12

Department of Highways v. Crosby, 410

EE SEE sniisasiienininniicmnsintccidmm neal: 15

Fries v. Wheeling & Lake Erie Ry. Co.,

Be A IEEE saicicecciardininientacai ete, 12

Jacobs v. United States, 290 U.S. 13 -....... 22

Kieselbach v. Commissioner, 317 U.S. 399.. 22

Minnesota v. United States, 305 USS.

AUIEE | ninpiessesscnicennhlisiinidiiatatadaptinitinceen aaa 7, 9-10, 17

Parrish v. Yorkville, 79 S.E. 635 -........... 12

Poafpybitty v. Skelly Oil Co., 390 U.S.

SD siniccecuvinstightinativeiaiadindeheamaa ate 8, 23

Russell v. Chicago & Milwaukee Elec. Ry.

SF Ee BN Te 12

Seaboard Air Line Ry. Co. v. United

me CCS ener 22

Stewart v. Milwaukee Elec. Ry. & Light-

ing Co., 86 N.W. 168 —......................... 12

Thomas S. Thorson, 17 I.B.L.A. 326........ 20

Texas v. Louisiana, 410 U.S. 702 .............. 18

United States v. Dickinson, 331 U.S. 745.. 21

United States v. Dow, 357 U.S. 17 ............ 13

United States v. Klamath Indians, 304

SY EP siiisecitaiaaaiicaiyiiiaiaei ener one: 22

United States v. Lee, 106 U.S. 196 .......... 11

United States v. Lynah, 188 U.S. 445....12, 13, 22

United States v. Wise, 370 U.S. 405 ........ 11

Winslow v. Baltimore & Ohio, R.R., 188

WP UN snhcusipliimnentiiiabiladtuna maneaacenans 11

Constitution, statutes and rule: Page

United States Constitution,

Eleventh Amendment. ...................--------- 7

Act of July 18, 1966, Pub. L. No. 89-505,

Section 1, 80 Stat. 304, 28 U.S.C. 2415.. 2,17

Section 1(b), 28 U.S.C. 2415(b)...... 2,19

Section 1(c), 28 U.S.C. 2415(c)...... 7,18

Section 1(f), 28 U.S.C. 2415(f)...... 19

Indian Appropriation Act of March 8,

1901, ch. 832, Section 3, 31 Stat. 1084,

I iliac ini snstiherennnsosaseevadiownserni passim

Uniform Relocation Assistance and Real

Property Acquisition Policies Act of

1970, 42 U.S.C. 4601 et seq. W000... 14

Section 304(a), 42 U.S.C. 4654(a).... 14, 15

Nee ci sctcuasinankiieneencndaciodaases 10, 21

I hic cncanesneenecrensnsencensas 10

Needs sacosecnacnennssisonectninnisen 4

vei vaisdennnnevenccuesiyseossseeone 4

Ge 5

BN acco cccccscncccacecenncsees 23

PIT aoc csncsrcenccnicessocecoaceessnenen 10

Miscellaneous:

84 Cong. Rec. 1448 (1901) 2... 10

H.R. Rep. No. 2064, 56th Cong., 2d Sess.

Nh il chiieihehisiaisticensiisenionateiinnenennseese 10

H.R. Rep. No. 2508, 82d Cong., 2d Sess.

EE ESET 8, 23

1967 Op. Atty. Gen. No. 2 .......................... 16

S. Rep. No. 1328, 89th Cong., 2d Sess.

EE CE 18

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 78-1693

UNITED STATES OF AMERICA, PETITIONER

Vv.

GLEN M. CLARKE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 590 F.2d 765. The opinion of the dis-

trict court (Pet. App. D) is unreported. The opinion

of the court of appeals on a previous appeal (Pet.

App. E) is reported at 529 F.2d 984. The district

court’s prior opinion (Pet. App. F) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

B) was entered on January 15, 1979. By order of

April 10, 1979, Mr. Justice Rehnquist extended the

time within which to file a petition for certiorari to

(1)

and including May 10, 1979. The petition was filed

on May 10, 1979, and was granted on October a

1979. The jurisdiction of this Court rests on 28

U.S.C. 1254(1).

QUESTION PRESENTED

Whether 25 U.S.C. 357 authorizes a state or local

government to “condemn” allotted Indian trust lands

by physical occupation.

STATUTES INVOLVED

Section 3 of the Indian Appropriation Act of March

3, 1901, ch. 832, 31 Stat. 1084, 25 U.S.C. 357, pro-

vides in pertinent part:

That lands allotted in severalty to Indians

may be condemned for any public purpose under

the laws of the State or Territory where located

in the same manner as land owned in fee may

be condemned, and the money awarded as dam-

ages shall be paid to the allottee.

Section 1 of the Act of July 18, 1966, Pub. L. No.

89-505, 80 Stat. 304, 28 U.S.C. 2415, provides in per-

tinent part:

§ 2415. Time for commencing actions brought

by the United States

(a) Subject to the provisions of section 2416

of this title, and except as otherwise provided by

Congress, every action for money damages

brought by the United States or an officer or

agency thereof which is founded upon any con-

tract express or implied in law or fact, shall be

barred unless the complaint is filed within six

years after the right of action accrues or within

one year after final decisions have been rendered

in applicable administrative proceedings re-

quired by contract or by law, whichever is later:

* * * Provided further, That an action for

money damages brought by the United States for

or on behalf of a recognized tribe, band or group

of American Indians shall not be barred unless

the complaint is filed more than six years and

ninety days after the right of action accrued.

* * *

(b) Subject to the provisions of section 2416

of this title, and except as otherwise provided by

Congress, every action for money damages

brought by the United States or an officer or

agency thereof which is founded upon a tort

shall be barred unless the complaint is filed with-

in three years after the right of action first ac-

crues: Provided, That an action to recover dam-

ages resulting from a trespass on lands of the

United States * * * may be brought within six

years after the right of action accrues, except

that such actions for or on behalf of a recognized

tribe, band or group of American Indians, in-

cluding actions relating to allotted trust or re-

stricted Indian lands, may be brought within six

years and ninety days after the right of action

accrues * * *,

the time for bringing an action to establish the

title to, or right of possession of, real or personal

property.

* * * * *

(f) The provisions of this section shall not

prevent the assertion, in an action against the

United States or an officer or agency thereof, of

any claim of the United States or an officer or

agency thereof against an opposing party, a co-

party, or a third party that arises out of the

transaction or occurrence that is the subject mat-

ter of the opposing party’s claim. * * *,

STATEMENT

1. The chronology of this case begins in 1954 after

Bertha Mae Tabbytite had settled on the land in ques-

tion, some 160 acres in the Chugach Mountains,

southeast of Anchorage, Alaska. Although an Ameri-

can Indian entitled to a special allotment of public

land (see 25 U.S.C. 334, 336), Mrs. Tabbytite initi-

ally sought to perfect a claim under the homestead

laws. She filed her first application in 1954 and re-

filed two years later (Pet. App. 12a). In June 1958

Glen Clarke and his wife applied for a homestead on

an adjoining 80 acres and two months later con-

structed a road across Tabbytite’s land (Pet. App.

12a, 17a). They obtained no easement for the road

(Pet. App. 18a) and it is now settled that the road

could not be justified as a “way of necessity” (Pet.

App. 13a-15a).

The Clarkes repeatedly contested Tabbytite’s home-

stead application (Pet. App. 12a, 17a). They, how-

ever, secured a patent in 1961, and subdivided their

acreage into 40 lots. That same year the area was

incorporated as part of a third class city, Glen Alps

(Pet. App. 12a, 17a)." Mrs. Tabbytite, on the oth-

er hand, was unsuccessful both in her efforts to pre:

vent the continuing trespass over her land (Pet. App.

13a) and in her several attempts to obtain a home-

stead patent (Pet. App. 12a ,17a). Ultimately, in

1966, she agreed to accept a restricted trust patent to

the 160 acres as an Indian allotment (Pet. App. 12a-

13a, 17a). As a consequence, Mrs. Tabbytite may

neither sell nor encumber the land during the life of

the trust, which may be extended without her consent.

Meanwhile legal title remains in the United States.

25 U.S.C. 348. In 1969, the United States filed the

present action to enjoin the use of the road across

the Tabbytite allotment and for damages.

2. By an order entered in October 1973, the dis-

trict court awarded damages for trespass but denied

the injunction (Pet. App. 19a-21a). The court con-

cluded that the road was “a way of necessity” and

that closing the road would cause undue “hardship”’

to the defendants (Pet. App. 18a-19a). That deter-

mination was reversed on appeal and the case was re-

manded (Pet. App. lla-15a). However, this was not

to be the end of the matter.

By this point, February 1976, the Municipality

of Anchorage had annexed Glen Alps and apparently

taken over the road crossing the Tabbytite allotment

1In an opinion dated November 9, 1976 (Br. of Anchorage

on Appeal in No. 77-2571, Exh. A), the district court held

that as a third class city, Glen Alps lacked the power of

eminent domain and therefore could not, prior to unification

with Anchorage, have effected a taking.

(Pet. App. 8a). On remand, the Municipality en-

tered the proceedings and opposed the injunction on

the ground that it had effectively exercised its power

of eminent domain by “inverse condemnation” (Pet.

App. 8a-9a). The United States argued that the fed-

eral statute invoked for consent to condemn an Indian

allotment held in trust did not authorize inverse con-

demnation. The district court rejected the govern-

ment’s submission and relegated Mrs. Tabbytite to an

action for just compensation (Pet. App. 8a-10a). The

court of appeals agreed and affirmed (Pet. App. 1a-

5a).

SUMMARY OF ARGUMENT

Land allotted in trust to Indians cannot be con-

demned by mere physical seizure. When 25 U.S.C.

357 was enacted seventy-eight years ago, the term

condemnation signified a judicial or quasi-judicial

proceeding brought by a condemnor against the own-

er of the desired property. Both federal and state

courts entertained proceedings in equity to recover

land from states, railroads and the like who sought to

occupy the land without instituting condemnation

proceedings. This is not to say that governmental

entities could not or cannot acquire property by means

other than condemnation or purchase. Takings oc-

cur whenever the government through inadvertence

or mistake occupies or destroys another’s property.

But such takings by occupation or seizure were not,

and are not today, the legal equivalent of condemna-

tion proceedings. And they are not encompassed by

Section 357.

The court of appeals’ reading -of Section 357 as

authorizing takings by seizure would lead to illogi-

cal results. If a state commences a proceeding to con-

demn an Indian trust allotment, the United States is

an indispensible party. Minnesota v. United States,

305 U.S. 382 (1939). Yet, if takings by seizure were

permitted, allotted land could be acquired without the

government even becoming aware of the taking, much

less having an opportunity to challenge whether it is

authorized and the extent to which it is necessary.

Moreover, allotted lands could be acquired by what

amounts to adverse possession. A state could acquire

such lands, inter alia, by remaining in possession un-

til an action for damages becomes time-barred, thus

avoiding payment of any compensation whatsoever.

This is at odds with a statute providing in effect that

the running of a statute of limitations cannot extin-

guish the United States’ title to land (28 U.S.C. 2415

(c)), which, in a case like this one, presumably car-

ries with it the right to place restrictions on aliena-

tion and encumbrances. Furthermore, under the deci-

sion below Indian allottees could well be barred by the

Eleventh Amendment from recovering compensation

for seized land where the state is the would-be con-

demnor and the allottee in his or her own right brings

the “inverse condemnation” proceeding.

Finally, if left undisturbed, the decision below

would impose a substantial burden on the United

States in its role as trustee of Indian lands, and an

even greater burden on the Indians themselves. The

ultimate hardship would be, of course, the loss of

land without any compensation. That is a very real

possibility for thousands of Indians who must dis-

cover when a state or a municipality has occupied

part of an allotment, determine whether a compensa-

ble taking has occurred, decide how to proceed to

protect their interests, locate counsel, and commence

an action for just compensation before it is time-

barred. This is no mean task since Indians frequent-

ly do not reside on their allotments, allotments are

often remote, boundaries are uncertain, and counsel

is not always available.

Even allottees whe * «aged to bring timely suits

for just compensation »suld be disadvantaged by the

decision below. Their recovery would be based on

the value of their land at the time of the state’s

entry, rather than at the time compensation is de-

termined. The same factors that would cause some

allottees to lose their right to compensation alto-

gether would delay others to the point that the dis-

crepancy in recovery would be substantial.

The United States of course has an obligation as

trustee to guide Indian allottees through this legal

thicket. However, as this Court has recognized, the

government “is faced ‘with an almost staggering prob-

lem in attempting to discharge its trust obligations

with respect to thousands upon thousands of scat-

tered Indian allotments,’” Poafpybitty v. Skelly Oil

Co., 390 U.S. 365, 374 (1968), quoting H.R. Rep.

No. 2508, 82d Cong., 2d Sess. 23 (1952). That prob-

lem is exacerbated by a construction of Section 357

that permits states to encroach on trust lands without

apprising either the United States or the allottee, and

that in fact creates substantial incentives for states

to minimize the likelihood of discovery and maximize

the delay in any proceeding for compensation.

ARGUMENT

25 U.S.C. 357 DOES NOT AUTHORIZE A STATE TO

CONDEMN A ROAD ACROSS AN INDIAN ALLOT-

MENT WITHOUT BRINGING A PROCEEDING IN A

UNITED STATES DISTRICT COURT

For the present, we indulge the assumption that

25 U.S.C. 357 authorizes the acquisition of a right of

way for road purposes through restricted Indian land

by direct judicial condemnation proceedings, and con-

fine ourselves to the proposition that the cited statute

does not permit tht result to be achieved by so-called

inverse condemnation.? Of course, if the Court ac-

cepts our submission, there will be no more occasion

here to decide the correctness of that assumption than

there was in Minnesota v. United States, 305 U.S.

* The unilateral occupation or seizure of property followed

by payment of just compensation has, in recent years, been

labelled “inverse condemnation.” It is perhaps more accurate

to refer to this process as the inverse of condenmation. In a

condemnation proceeding, property ordinarily is taken pur-

suant to a judgment and upon payment of compensation.

Property inversely condemned is taken prior to any judicial

proceeding and prior to the payment of compensation. A

condemnation proceeding is brought by the condemnor

against the property to effect a taking and acquire title.

An inverse condemnation proceeding is brought, if at all,

by the property owner against the government and is

limited to determining just compensation.

382, 391 (1939). For that reason, we have not de-

bated the question whether Section 357 is wholly un-

availing to the would-be acquirer of a road right of

way because that special matter is exclusively gov-

erned by 25 U.S.C. 311 or 25 U.S.C. 323-328. But

our silence should not be understood as expressing a

concluded view in opposition to the argument ad-

vanced by separate counsel on behalf of Mrs. Tabby-

tite.*

A. The Term “Condemnation” Means A Judicial Proceed-

ing To Acquire Property Brought By An Entity

Possessed Of The Power Of Eminent Domain

1. The term “condemn” is not defined in 25 U.S.C.

357 or in any other provision of the Indian Appro-

priation Act of March 3, 1901. Nor is there any

helpful legislative history. The language that was

to become Section 357 was not part of the original

bill and was inserted, without comment or discussion,

on the Senate floor. 34 Cong. Rec. 1448 (1901).*

Nevertheless, we have a strong indication of congres-

3 Mrs. Tabbytite intervened in the original proceedings in

the district court (see Pet. App. 1la, 16a-17a) and has par-

ticipated as a separate party ever since. Not having peti-

tioned, she is a respondent in this Court (Rule 21(4) ), albeit

aligned with the United States, petitioner.

* Section 3 of the Act, to which the language of Section 357

was added, was discussed briefly in the House Report on

H.R. 12904, H.R. Rep. No. 2064, 56th Cong., 2d Sess. 3

(1900): “Fifth. Providing for the opening of highways

through like lands under State and Territorial laws and upon

the payment of compensation” (emphasis added). The itali-

cized phrase suggests that simultaneous compensation was

sional intent in the usage and practice of the time.°

At the turn of the century, when Section 357 was

enacted, it was generally understood that in order

for land to be condemned, the would-be condemnor

must institute a judicial proceeding. Thus, in a case

similar in many important respects to that at bar,

a landowner brought suit for rent and ejectment

against a railroad which possessed the power of emi-

nent domain. The railroad had occupied a right of

way across the landowner’s property without com-

mencing a judicial proceeding or paying just com-

pensation. This Court rejected the railroad’s sug-

gestion that the landowner’s suit be treated as a

condemnation proceeding, and gave the railroad six

months in which to bring a true condemnation action

or face ejectment. Winslow v. Baltimore & Ohio

R.R., 188 U.S. 646, 660-661 (1903).°

Similarly, the states limited condemnation to judi-

cial proceedings, and devised various means of chan-

nelling those who sought to acquire land by physical

occupation into the courts. For example, in Ohio,

Wisconsin and South Carolina, a landowner could

envisoned, which is inconsistent with the concept of taking

by seizure.

5 Resort to contemporaneous usage is, of course, a well

established means of divining Congressional intent. See, e.g.,

United States v. Wise, 370 U.S. 405, 409-411) (1962).

6 This was in line with then-prevailing federal law which

allowed a suit for ejectment against federal authorities who

took possession of land without bringing a condemnation pro-

ceeding. United States v. Lee, 106 U.S. 196 (1882).

bring an action to compel an occupier of land to

condemn the land. Fries v. Wheeling & Lake Erie

Ry. Co., 46 N.E. 516, 520 (Ohio 1897); Stewart v.

Milwaukee Elec. Ry. & Lighting Co., 86 N.W. 163

(Wis. 1901); Charnley v. Shawano Water Power &

River Improvement Co., 85 N.W. 507, 508-509 (Wis.

1901) ; Parrish v. Yorkville, 79 S.E. 635, 636 (S.C.

1913). And in Illinois, a landowner could sue for

ejectment, without prejudice to the possessor’s right

to bring a condemnation proceeding. Russell v. Chi-

cago & Milwaukee Elec. Ry. Co., 68 N.E. 727 (Ill.

1903).

To be sure, then as now, property was sometimes

effectively taken without resort to the courts. For

example, where land was inadvertently occupied or

destroyed by an entity having the power of eminent

domain, the property was deemed taken and just com-

pensation had to be paid. See, e.g., United States v.

Lynah, 188 U.S. 445, 468-469 (1903). However,

such instances were deemed truly exceptional at the

turn of the century. And a sharp distinction was

made between such “takings” on the one hand, and

“condemnation” on the other. See, e.g., United States

v. Lynah, supra at 462, 467, 468; see also id. at 478

(Brown, J., concurring).

In sum, considering the views then prevailing, it

must be deemed most unlikely that Congress in 1901

meant to condone self-help when it authorized the

“condemnation” of Indian allotted land.

2. Nor has the distinction between a unilateral

“taking” and judicial “condemnation” been erased in

more recent times. Even today, the term “condemna-

tion” is usually reserved for the procedure under

which property is acquired by an eminent domain

action filed in court. Thus, in United States v. Dow,

307 U.S. 17, 21 (1958), this Court observed that

“[{b]roadly speaking, the United States may take

property pursuant to its power of eminent domain in

one of two ways: it can enter into physical posses-

sion of property without authority of a court order; or

it can institute condemnation proceedings under vari-

ous Acts of Congress providing authority for such

takings.” In other words, there are two different

“classes of ‘taking’ cases—condemnation and physical

seizure * * *.” Ibid. See also United States v. Dick-

inson, 331 U.S. 745, 747-748, 749 (1947).

The two classes of taking are not legally equivalent.

And the practical differences remain significant. A

taking by seizure offers the property owner no oppor-

tunity to challenge the authority for the taking or the

extent of its necessity. Such rights are important

safeguards against government overreaching and mis-

take, as evidenced by the fact that in the instant

proceeding, the City of Glen Alps occupied the road

across Mrs. Tabbytite’s property for fourteen years

without being entitled to exercise the power of emi-

nent domain.

The two modes of taking also differ in terms of

when title passes. A taking by seizure does not vest

title in the taker. United States v. Dow, supra, 357

U.S. at 21-22; United States v. Lynah, supra, 188

U.S. at 470-471. Instead, title passes when compensa-

tion is paid or the statute of limitations runs. Ibid.

The time elapsed between a taking by seizure and

payment of compensation may, as illustrated by the

instant case, span years, or even decades. On the

other hand, when condemnation proceedings are in-

stituted, the taking does not occur until judgment

and therefore the taking and the vesting of title

are simultaneous. This distinction leads to quite

different results in terms of the valuation of property

and the nature of the property interest acquired. See

Point B, infra at 16.

The two modes of taking differ in another sig-

nificant respect. In a taking by condemnation the bur-

den is placed on the condemnor to notify the party

whose property is sought and to invoke the aid of a

court in determining just compensation. If the con-

demnor is not diligent, the property owner may retain

full use of and title to his or her property. By con-

trast, where a taking is accomplished by seizure, the

property owner loses the use of the property at the

outset, has the burden of bringing an action for pay-

ment of just compensation, and runs the risk of

receiving no compensation at all if the statute of

limitations runs. See Point C, supra at 20.

Finally, Congress itself has recently distinguished

between the two classes of taking in providing for the

award of litigation expenses under the Uniform Relo-

cation Assistance and Real Property Acquisition Pol-

icies Act of 1970, 42 U.S.C. 4601 et seg. In “a pro-

ceeding instituted by a Federal agency to acquire real

property by condemnation” (Section 4654(a)), the

landowner may receive costs and attorneys’ fees only

if the United States abandons the proceeding or is

adjudged to lack authority to acquire the property.

However, a landowner forced to sue for damages for a

physical taking of property by the federal government

is routinely entitled to an award of costs and fees

(Section 4654(c)). This statutory scheme not only

reflects the historic distinction between takings by

condemnation and takings by seizure; it manifests a

clear Congressional intent to encourage the former

and discourage the latter.

The State of Alaska has likewise expressed a pref-

erence for condemnation proceedings over physical

takings. In a 1967 Opinion involving damages to a

landowner’s property resulting from changes in the

grade of a roadway, the Attorney General discussed

the condemnation versus seizure question, relying in

part on the same Alaska Supreme Court case as did

the court below.

A careful reading of the Crosby case indicates

that the Supreme Court of Alaska does not give

blanket approval to inverse condemnation ac-

tions. The Court relied upon the good faith of

the State in not instituting a condemnation ac-

tion but did not give the State carte blanche

authority to ignore the provisions of both the

*In Department of Highways v. Crosby, 410 P.2d 724

(Alaska 1966), the court held that where the state seized

private land in the mistaken but good faith belief that a

right-of-way had been reserved in the patent to the land,

and where the landowners had entered into a stipulation

with the state acknowledging the taking and fixing the date

on which the property was to be valued for compensation

purposes, it would be “unrealistic” to require the state to

institute a formal condemnation proceeding. Id. at 728-729.

o--

Alaska statutes and constitution while appropri-

ating private property. Thus, it can be stated

that when the State believes it has taken an

individual’s property, the State should institute

a condemnation proceeding. A property owner

entitled to just compensation should never be put

in the position of having to resort to inverse

condemnation proceedings in order to collect his

compensation.

1967 Op. Atty. Gen. No. 2.

The important differences between unilateral tak-

ings and judicial condemnation, and the policy, na-

tional and state, of preferring the more regular mode,

suggest that Congress would not casually authorize

either procedure indifferently. Even today, authority

to “condemn” would most reasonably be read as re-

quiring resort to the judicial process. All the more

SO, We may suppose, in the more formal and less

hurried climate of 1901.

B. Reading 25 U.S.C. 357 To Authorize Takings By

Seizure Leads To Illogical Results

1. The decision below, expanding the term condem-

nation to encompass takings by seizure, leads to il-

logical results. First, it renders nugatory qualifica-

tions placed by this Court on the right of states to

proceed under Section 357. In Minnesota v. United

States, 305 U.S. 382 (1939), a unanimous Court,

speaking through Mr. Justice Brandeis, held that

states bringing condemnation suits under Section 357

must do so in federal rather than state courts, and

must join the United States as an indispensable party.

The Court concluded that there are “persuasive rea-

sons why [Section 357] should not be construed as au-

thorizing suit in a state court” (id. at 389). Yet,

here a state subdivision was permitted to acquire al-

lotted land without resort to any court. What is more,

whereas this Court concluded that “no effective re-

lief can be given in a proceeding to which the United

States is not a party” (id at 386 n.1), the court of ap-

peals in this case sanctioned a mode of taking that

requires no proceeding at all and that fails even to

apprise the United States that a taking has occurred.

2. Even more disturbing, the decision below would

permit states, under certain circumstances, to acquire

allotted lands without payment of any compensation,

something that could never happen under the ap-

proach sanctioned in Minnesota v. United States.*

Indeed, if it be lawful for a state or municipality to

take possession of part of an Indian allotment, the

statute of limitations presumably begins to run on

the allottee’s right to sue for just compensation from

the time of physical occupation.® And if no suit is

brought by the end of the limitation period, the state

presumably acquires the land, free of any obligation

to make payment.

8 Moreover, that result would seem to disappoint the ex-

press expectation of Section 357 that “the money awarded

as damages shall be paid to the allottee.”

® It is not clear whether under Section 357 state statutes of

limitation govern or the federal statute (28 U.S.C. 2415)

is applicable. That issue, however, is not involved here.

Such a result, however, does not tally with the rule

announced in 28 U.S.C. 2415(c). That Section pro-

vides that, without regard for time limitations, the

United States can bring an action “to establish the

title to, or right of possession of, real or personal

property.” The statute was designed to assure that

“no one can acquire title to Government property by

adverse possession.” §S. Rep. No. 1328, 89th Cong.,

2d Sess. 3 (1966); cf. Texas v. Louisiana, 410 U.S.

702, 714 (1973). The United States retains title to

lands allotted in trust. Therefore, if 28 U.S.C. 2415

guished by an “inverse condemnation” even if an ac-

tion for just compensation is time-barred. Indeed, it

is questionable whether the United States title can be

extinguished even if just compensation is paid, where

the government is not a party to the damages pro-

ceeding or has not had an opportunity during the

course of the proceeding to challenge the taking. The

continuing federal title would presumably carry with

it the power to restrict alienation and limit encum-

brances. Thus, even if a state acquired a possessory

interest by adverse possession, it might experience

difficulty in exploiting it by, for example, making

utility line grants along the right of way. No such

impasse can have been intended.

3. There is another statute of limitations problem

created by the decision below. Where, as here, a gov-

ernmental taking is “piggy-backed” onto a trespass,

either by a private person or by an entity lacking

authority to effect a taking, an action for trespass

can be asserted as a counterclaim in a condemnation

proceeding no matter when the trespass occurred (28

U.S.C. 2415 (f£)). However, if takings by seizure are

permitted, the burden of bringing a proceeding is on

the United States and the Indian allottee, and any

trespass claim must be asserted affirmatively. In such

circumstances, the claim presumably would be subject

to the 614 year statute of limitations set out in 28

U.S.C. 2415 (b).

4. Finally, permitting takings by seizure would

pose yet another hurdle for Indian allottees seeking

just compensation. Where the entity seeking land is

the state, rather than a municipality, the Eleventh

Amendment might bar recovery. In condemnation

proceedings no such problem exists since it is the

state that invokes the aid of the courts. However, in

“inverse condemnation” proceedings, the landowner

must sue the state. Since there is no statutory

authorization for such proceedings, the state might

well prove successful in arguing that it has not

consented to be sued. To surmount the obstacle, the

United States would be required to act as plaintiff in

every case, even though, under Section 357, “the

money awarded as damages shall be paid to the allot-

tee.” Given the many competing claims on limited

governmental resources, this could often delay re-

covery, to the prejudice of the allottee.

C. Reading 25 U.S.C. 357 To Authorize Takings By

Seizure Would Impose Substantial Burdens On The

Federal Government And Substantial Hardships On

Indian Allottees *°

In a condemnation proceeding, the condemnor must

serve notice on the party whose land is being sought,

must serve notice on the United States if allotted

land is involved, must spell out the extent of the

taking, must demonstrate its authority for and need

for the taking, and must pay compensation before

the taking occurs. To accomplish a taking by seizure,

a state or municipality need only occupy the land.

The burden then shifts to the landowner to discover

the encroachment and do something about it.

A state may occupy part of an Indian trust allot-

ment for years without being discovered. Indians

need not reside on or make use of allotted lands, and

many do not. Allotments are often quite remote.

Signs of encroachment are not always obvious. A

disruptive modern highway may begin as a dusty

dirt road or a trail through the wild. Boundaries of

allotments are often uncertain since the equitable

interest of the allottee does not depend on the land

being surveyed or certificated. See Thomas S. Thor-

son, 17 I.B.L.A. 326 (1974). Once an encroachment

is discovered, the allottee has the burden of determi-

ning whether a compensable taking has occurred. The

10 Such a reading would therefore run contrary to the gen-

eral rule that statutes dealing with Indians are to be con-

strued in the Indians’ favor. Bryan v. Itasca County, 426

U.S. 373, 392 (1976).

party in occupation may be a private trespasser, like

Glen Clarke, or a public one, like Glen Alps. The

occupation may be temporary, insubstantial, or in-

choate. Cf. United States v. Dickinson, 331 U.S. 745

(1947).

The allottee must then determine how to proceed.

If the occupier is viewed as a trespasser, the allottee

might attempt, as did Mrs. Tabbytite, some form of

self help such as blocking the road or otherwise im-

peding the occupier’s use of the land. The allottee

might also try to negotiate with the state or munici-

pality, or to compel the state to negotiate with the

Secretary of the Interior pursuant to 25 U.S.C. 311.

Particularly when the allottee’s aim is to terminate

the encroachment and recover the land, a suit for

just compensation would likely be his or her last re-

sort. In sorting out these various possibilities, many

Indians must overcome cultural barriers that inhibit

their ability to comprehend Anglo-American concepts

of property and the vagaries of our legal system. Cf.

Calista Corp. v. Mann, 564 P.2d 53, 61 (Alaska

1977). Those who decide to seek legal counsel may

well experience considerable difficulty in doing so,

particularly in remote areas. Cf. Aguchak v. Mont-

gomery Ward Co., 520 P.2d 1352, 1357 (Alaska

1974).

An Indian allottee who fails to discover an en-

croachment promptly or who, upon discovery, pursues

remedies other than a suit for just compensation runs

the risk of losing his or her property by what amounts

to adverse possession. Once the statute of limitations

runs on a damages action, the property interest taken

by seizure passes to the state. United States v. Lynah,

supra, 188 U.S. at 470-471. Under such circum-

stances, the allottee would not only lose the land; he

or she would receive no compensation for it.

Allottees who manage to bring timely damages suits

would, of course, receive compensation, but they too

would be disadvantaged by the court of appeals’ read-

ing of Section 357. Assuming rising lands values,

the inevitable delay between the date of the taking

and the award of compensation " would result in a

significant discrepancy between what tiie allottee

would recover in a condemnation proceeding and what

he or she would recover in an “inverse condemnation”

proceeding.” For example, were a condemnation pro-

ceeding commenced against Mrs. Tabbytite today, her

compensation would be based on the land’s current

1 On top of the delay inherent in discovering the taking

and determining how to remedy it, ultimate recovery is sub-

ject to delays during the course of the damages proceeding.

The instant proceeding, albeit not one for just compensation,

has dragged on for ten years. Indeed, it is in the state’s

pecuniary interest to delay such proceedings during periods

of inflation since the ultimate compensation is paid in de-

preciated dollars.

This Court has recognized the appropriateness of an

award of interest as a convenient measure of compensation

for delay in payment. United States v. Klamath Indians, 304

U.S. 119, 123 (1938) ; Jacobs v. United States, 290 U.S. 18,

17 (1933) ; Seaboard Air Line Ry. Co. v. United States, 261

U.S. 299, 306 (1923). However, such interest is designed

to compensate for the landowner’s loss of the use value of his

or her property (Kieselbach v. Commissioner, 317 U.S. 399,

403-404 (1943), and in no way compensates for the appreci-

ated value of the land.

ant

value. Were the proceeds reinvested pursuant to

25 U.S.C. 409(a), equivalent substitute land could

be acquired.. However, were she to commence a pro-

ceeding to recover just compensation,“ Mrs. Tabby-

tite’s award would be based on the value of the land

when Anchorage took over the road in 1975, prior to

the current pipeline-induced land boom.

The Indian allottee need not, of course, take on the

state single-handedly. The United States as trustee

has a moral and legal obligation to protect the inter-

ests of Indian allottees. Minnesota v. United States,

supra. See also Board of County Comm’rs v. Seber,

318 U.S. 705, 715 (1943). However, as this Court

has recognized, the government “is faced ‘with an

almost staggering problem in attempting to discharge

its trust obligations with respect to thousands upon

thousands of scattered Indian allotments,’ ” Poafpy-

bitty v. Skelly Oil Co., 390 U.S. 365, 374 (1968),

quoting H.R. Rep. No. 2503, 82d Cong., 2d Sess. 23

(1952). The court of appeals’ decision converts an

overwhelming responsibility into an impossible bur-

den, and should not be sustained.

13 Presumably she could assert such a claim in the instant

trespass action and thus avoid any statute of limitations

problem.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

WADE H. McCREE