Appendix — Omaha Indian Tribe v. Agricultural & Industrial Investment Co.
Supreme Court brief1991
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91-48 | SEP 23 jog)
No. 91-
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1991
OMAHA INDIAN TRIBE, TREATY OF 1854, ORGANIZED
PURSUANT TO THE ACT OF JUNE 18, 1934 (48 STAT.
984; 25 U.S.C. 476) AS AMENDED,
Petitioner,
v.
AGRICULTURAL & INDUSTRIAL INVESTMENT
COMPANY; JOHN R. WILSON; CHARLES E. LAKIN,
FLORENCE LAKIN; R.G.P., INC., AN IOWA
CORPORATION; HAROLD JACKSON; OTIS PETERSON;
DARRELL L. HAROLD, and LUEA SORENSON;
STATE OF IOWA and IOWA DEPARTMENT OF
NATURAL RESOURCES, et al.,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
WILLIAM H. VEEDER
Suite 920
818 18th Street, N.W.
Washington, DC 20006
(202) 466-3890
Attorney for
Omaha Indian Tribe
RObbioai i CLERK
PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203
EDITOR'S NOTE:
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUrD.
eS
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
Appendix I
Appendix J
Appendix K
Appendix L
APPENDIX INDEX
Judgment of the District Court, Judge
Urbom presiding, of May 29, 1990 ..
Memorandum and Order on Plaintiff’s
Proposed Pretrial Order and on
Defendants’ Motions to Dismiss dated
BORNE: Fg ROD vocivcecincdnssstieastlibbhincannmecees
Memorandum and Order on Sanctions
Regarding Pretrial Conferences of
August and September 1989, dated
BN 8) SEE ceadndcicntetanncci dace
Order on Sanctions dated May 29,
ER eee Ce
Memorandum and Order on Sanctions
Pursuant to the May 15, 1990 Hear-
ing, dated May 29, 1990 ..................
Court of Appeals Opinion of May 28,
IE: edssesidaandeotaae a seinididestsunindactaansane
Order Denying Petition for Rehearing
with Suggestion for Rehearing En
Banc dated July 31, 1991 ................
Stay of Mandate of Court of Appeals
Gated Awmust 21, 1991 .....ccccccescccrvess
Wilson v. Omaha, 442 U.S. 653
ERNE NE IS EEN OR ER
Court of Appeals Omaha v. Agricul-
tural, 575 F.2d 620, (CA 8, 1978)...
Complaint, Omaha v. Agricultural, et
al., C-75-4067, October 6, 1975 .......
Complaint, United States v. Wilson,
et al., C-75-4024, May 19, 1975 .......
Page
la
2a
Appendix M
Appendix N
Appendix O
Appendix P
Appendix Q
Appendix R
Appendix S
Appendix T
Appendix U
Appendix V
Appendix W
il
Sua Sponte Amendment to Order of
Consolidation dated April 5, 1976....
Nebraska v. Iowa, No. 17, Original,
October Term 1964, Selected pages of
Petitioner Iowa’s Appendix to
BNE siccexcisssssnemmeneeaanennnn
Magistrate’s Order dated June 6,
BOD cccscisscsceiacssenpeueneevia sine
Emergency Motion Requesting Im-
mediate Reconsideration of the June
6, 1989 Order, filed June 13, 1989..
Order dated September 29, 1989 .....
Motion Requesting this Court to De-
clare that the May 29, 1987 Judg-
ment in Res Judicata Against
Defendants Respecting the Title to
Lands Outside the Barrett Line. (Se-
HOCEOE SUID ovccicisessonsiccssnumeeens
Transcript pages of Preliminary Pre-
trial Hearing, August 22, 23, 1989.
CSOOCTOG DOREY ovciviceccccccarenseuticnains
Defendants State of Iowa and Iowa
Department of Natural Resources’
Motion in Limine dated September
BD, BOD sctsensneresmcaiceeee
Plaintiff Omaha Indian Tribe’s Op-
position to Defendant Iowa’s Motion
in Limine date October 1, 1989 ......
Order dated October 5, 1989 ...........
Administrative Order: Honorable
Warren K. Urbom Assigned to This
BIG. osickiccceeeseeeunieenaeeee
156a
160a
162a
167a
175a
179a
187a
Appendix X
Appendix Y
Appendix Z
ill
Plaintiff Omaha Indian Tribe Moves
this Court for an Order with Memo-
randum in Support dated December
cis redncecearsstesecsesvovercees
Plaintiff Omaha Indian Tribe’s Mo-
tion to Have Honorable Warren K.
Urbom Hear and Determine Issues
Presented Here and Response to
Defendants’ Motions to Dismiss with
Prejudice dated March 13, 1990. (Se-
SR
Selected pages from Petitioner
Tribe’s Proposed Pretrial Order .......
224a
la
APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
C 75-4067
OMAHA INDIAN TRIBE,
Plaintiff,
VS.
AGRICULTURAL INDUSTRIAL
INVESTMENT CO., et al.,
Defendants.
FILED
SIOUX CITY DIV. OFFICE
NORTHERN DISTRICT OF IOWA
11:10 am
MAY 29 1990
WILLIAM J. KANAK - Clerk
By: M. Hoch, Deputy
JUDGMENT
Pursuant to the memorandum and orders of May 7,
1990, and May 24, 1990,
IT IS ORDERED that the unconsolidated portion of
Case No. C75-4- 67 is dismissed with prejudice.
Dated May 24, 1990.
BY THE COURT
/s/ Warren K. Urbom
United States District Judge
2a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
C 75-4067
OMAHA INDIAN TRIBE,
Plaintiff,
vs.
AGRICULTURAL INDUSTRIAL
INVESTMENT CO., et al.,
Defendants.
FILED -
SIOUX CITY DIV. OFFICE
NORTHERN DISTRICT OF IOWA
10:10 am
MAY 7 1990
WILLIAM J. KANAK - Clerk
By: M. Hoch, Deputy
MEMORANDUM AND ORDER ON
PLAINTIFF’S PROPISED PRETRIAL ORDER AND ON
DEFENDANTS’ MOTIONS TO DISMISS
This matter is before me on motions to dismiss with
prejudice filed by the defendants State of Iowa and the
Iowa Department of Natural Resources, (Filing 460); Har-
old Sorenson, a/k/a Harold M. Sorenson, Luea Sorenson
and Darrell Sorenson, (Filing 462); Charles and Florence
Lakin, R.G.P. Inc., and Otis Peterson, (Filing 463), Ag-
3a
ricultural & Industrial Investment Co., (Filing 465); Edna
Boulden Miller, et. al., (Filing 468); James McGuire and
Myron Barton, (Filing 469); and John R. Wilson, Personal
Representative of the Estate of Roy Tibbals Wilson, De-
ceased, (Filing 470). The plaintiff Omaha Indian Tribe has
filed a response entitled ‘“‘Motion to Have Honorable War-
ren K. Urbom Hear and Determine Issues Presented Here
and Response to Defendants’ Motions to Dismiss With
Prejudice”’. (Filing 472). Replies to the plaintiff's response
have been filed by the defendants Agricultural & Industrial
Investment Co., (Filing 473); State of Iowa and the Iowa
Department of Natural Resources, (Filing 474); Edna
Boulden Miller, et. al., (Filing 476); and John R. Wilson,
R.G.P. Inc., and Donald L. Rupp, (Filing 477). The
defendants have moved for involuntary dismissal of the
plain tiff’s case pursuant to Fed. R. Civ. P. 16(f), (failure
to ohey a scheduling or pre-trial order); 41(b), (failure to
prosecute or comply with rules or order of the court); and
58, (entry of judgment).
THE PROPOSED PRETRIAL ORDER
The issue before me now is whether the proposed pre-
trial order (PPTO) presented to the court on October 16,
1989, along with a motion to file the PPTO, is in com-
pliance with the court’s order of June 9, 1989. (Filing 263).
After extensive review of the PPTO, and after lengthy
consideration of the objections raised by the defendants in
their motions to dismiss and of the responses by the
plaintiff, I conclude that the PPTO fails to comply with
the June 9, 1989, order.
First, the plaintiff has failed to make a good faith effort
to arrive at any undisputed facts. The extremity of the
failure is evidenced by the plaintiff's failure to agree even
that the Omaha Indian Tribe is governed by a body known
as the Tribal Council, or that the State of Iowa was ad-
mitted to the Union by an act of Congress on December
28, 1846.
4a
Second, the plaintiff's statement of legal issues is in-
adequate and contains allegations upon which this court
and the 8th Circuit have previously ruled. Specifically, the
plaintiff alleges that it is improperly being forced to submit
to a “‘retrial’’ of the same issues because the first case is
res judicata to the present case. This issue was previously
discussed at length and rejected by Judge McManus in
Filing 210. The plaintiff also raises the issue of whether
the Tribe can be bound by the “forced fraudulent repre-
sentation” of Evan Hultman and others, and whether Hult-
man ‘‘sold out’’ the Tribe in the first case. This argument
is frivolous. The Eighth Circuit has ruled that it was friv-
olous in Omaha Indian Tribe v. Jackson, 854 F.2d 1089,
1092 (8th Cir. 1988). A motion in limine was granted on
October 5, 1989, prohibiting the plaintiff from referring
to its fraudulent representation claims. To raise this issue
again in the PPTO is to disregard the previous findings
of this court and the court of appeals.
Third, and most significantly, the plaintiff failed to dis-
close six alleged avulsions in Tracts II and III. The
defendants learned of these avulsions only after deposing
the plaintiff's expert witnesses. The seriousness of this
failure to disclose is apparent from the fact that the out-
come of this case depends on whether the Missouri river
moved by accretion or avulsion.
The first of the undisclosed avulsions became known to
the defendants during the deposition of Elmer Clark, one
of the plaintiff Tribe’s experts, on or about October 11,
1989. (See Filings 405, 406, 407, 408 and 428). Clark re-
vealed the existence of an alleged avulsion in Monona Bend
that occurred sometime between 1879 and 1890. (Filing
418, p. 430 of depo.). Clark also stated during his depo-
sition that he had informed counsel for plaintiff (Veeder)
of this claim prior to the filing of the case. (Filing 428,
p. 240 of Clark depo.).
5a
On October 24, 1989, during the deposition of another
of the plaintiff's experts, Dr. Charles Robinson, Veeder
admitted that his factual contentions in the Tracts II and
III PPTO failed to include two more avulsions; one that
occurred in 1912-1923 in the northern segment of the
Omaha Mission Bend, and another that occurred between
1929 and 1956 in the lower segment of the Omaha Mission
Bend. (Filing 419). Veeder stated that he deeply regretted
the oversight and that he assumed full responsibility. He
stated that he did not mean to be deceitful, but rather it
was simply an inadvertence that had occurred because he
“didn’t take the time to check the language against the
exhibits.”’ (Filing 419, p. 2 of depo.).
On October 26, 1989, during the deposition of plaintiff's
expert Doyle Abrahamson, the defendants learned for the
first time of another alleged avulsion occurring in Monona
Bend sometime around 1929. (Filing 431, exhibit A). Abra-
hamson testified that he had known about the avulsion
since 1975 and that Veeder had also been aware of it since
that time. (Filing 431, exhibit A, p. 7).
Finally, Agricultural states in its second supplemental
objection to the PPTO (Filing 431), that during the dep-
osition testimony of Dr. Charles Robinson on October 26,
1989, two more alleged avulsions were revealed, one in
Monona Bend in 1912-1923, and the other in lower Monona
Bend in 1928-1930. They state that the transcript of this
is not yet available. (Filing 431 was filed one day after
the deposition. A review of the record indicates that a
copy of that deposition has not yet been filed.)
None of these avulsions was disclosed in answers to
interrogatories or in the PPTO. Similarly, the plaintiff did
not include this information in his summary of witnesses’
testimony.
All this has added significance because the Tribe through
its counsel has maintained repeatedly throughout this lit-
6a
igation that the defendants’ counsel had all the evidence
of avulsions that the plaintiff's experts had.
The defendants learned that plaintiff's expert Abraham-
son would be testifying as an expert on river hydrology
and morphology for the first time during his deposition.
Abrahamson was not so described in the PPTO. (Filing
439). Similarly, it was first learned during the deposition
of Charles P. Corke, one of plaintiff's experts, that Corke
would testify as an expert on river hydrology and mor-
phology. (Filing 437).
HISTORY
A review of the history of this case shows a pattern of
refusal to comply with discovery order.
In his June 15, 1987, order, Judge McManus stated that
it had come to the court’s attention that matters filed in
this case (that is, the second case) had been misfiled in
the previous case, and ordered all parties to file a list of
past filings that should be maintained as part of this case
by July 13, 1987. It was further ordered that, by no later
than July 31, 1987, the parties file a report pursuant to
local rule 2.4 including a statement of the status of the
case and a complete updated list of the parties and
attorneys who must be served.
On the court’s own motion dated September 9, 1987,
the court noted that the plaintiff Tribe had not complied
with the June 15, 1987, order, and directed the Tribe to
comply by no later than September 23, 1987. (Filing 128).
On September 24, 1987, the plaintiff responded by pro-
testing that the June 15 and September 9 orders were
part of the illegai attempts to force the plaintiff Tribe to
retry the litigation that had already been concluded in the
Blackbird Bend area. Because of the pendency of the appeal
in the first case and the fact that there had been a full
trial on the merits, the plaintiff contended that it would
7a
be virtually impossible to respond to a report pursuant to
Rule 2.4. (Filing 134).
After a status conference before Magistrate Jarvey on
July 27, 1988, defendant Iowa served interrogatories and
a request for production of documents on the plaintiff. On
August 18, 1988, the plaintiff filed a motion for an ex-
tension of time until September 26, 1988, to interpose
objections or otherwise respond. (Filing 168). That motion
was granted on August 29, 1988, and plaintiff was given
until September 26, 1988, to respond. (Filing 172).
On September 27, 1988, plaintiff filed an objection to
the interrogatories and request for production of docu-
ments on the grounds that they were not tendered in good
faith and that discovery at this point was simple harass-
ment. The plaintiff argued that the defendants had the
entire record of the trial on the merits, and that they
were therefor fully aware of all the expert testimony re-
garding river morphology. The plaintiff requested that the
court suspend all discovery until the court determined from
the record at trial which evidence it perceived to be pro-
bative, and further, to require the parties to exhaust the
record of the trial, which was the best source of infor-
mation regarding the Tribe’s witnesses, their testimony
and the evidence in support of their conclusions.
Following this, the defendants moved to compel discov-
ery. (Filing 176, 178, 180). The defendant Iowa moved for
sanctions against the plaintiff based on its failure to serve
answers to its interrogatories or to provide any good-faith
basis for its failure to comply. (Filing 180). Iowa argued
that this was the second time in two years that the Tribe
had failed to comply with discovery requests. Previously
the court had dismissed plaintiff's damage claims on land
inside the Barrett survey as a sanction for discovery vi-
olations. Iowa attached a copy of that order (dated De-
cember 1, 1986) to its motion. The 1986 order stated that
the court had previously entered an order on November
8a
17, 1986, directing the Tribe to answer interrogatories,
produce documents, and file a statement of compliance by
no later than November 26, 1986. The court further stated
that the plaintiff's response filed on November 28, 1986,
was totally unresponsive and therefore failed to comply.
On January 26, 1989, Magistrate Jarvey granted the
defendants’ motions to compel, but served ruling on the
motion for sanctions. (Filing 196). The Tribe was ordered
to answer interrogatories 1 through 17 and comply with
the request for production of documents. The plaintiff was
given until April 1, 1989, to designate its expert witnesses
in full compliance with Fed. R. Civ. P. 26(b) (4) (A) (i),
and all discovery was to be completed by August 1, 1989.
On February 2, 1989, the plaintiff filed a motion to
reconsider the January 26, 1989, ruling and renewed its
request to stay all proceedings. (Filing 197).
On February 27, 1989, defendant Agricultural moved for
an order compelling the plaintiff to answer its interro-
gatories and request for production of documents. (Filing
203).
The plaintiff's motion to stay was denied on March 24,
1989. In his order, Judge McManus detailed the history
of the plaintiff's failure to comply with court orders in the
first case. Because of the length of the document I have
attached a copy to this memorandum, rather than recite
its discussion. The court ordered that this case be dis-
missed with prejudice, unless the Tribe and Veeder comply
with each of the orders discussed by no later than April
10, 1989, or show cause why they should not be required
to do so. Finally, the plaintiff's motion to declare the
court’s final judgment and decree in the first case res
judicata to this case was denied. (Filing 210).
On April 7, 1989, defendant Wilson moved to dismiss
the case as a sanction for plaintiffs failure to answer the
interrogatories, produce documents, or designate witnesses
9a
by April 1, 1989, as required by the court’s order of Jan-
uary 26, 1989.
The plaintiff responded that the names of its expert
witnesses and their testimony, together with all the ex-
hibits, received at the first trial, were known to the court
and the defendants. (Filing 218).
On May 2, 1989, the court again ordered that plaintiff
designate its expert witnesses, this time by no later than
May 15, 1989, and complete its depositions by June 15,
1989. The court also denied a motion for the plaintiff to
stay discovery. (Filing 235).
Ten days later the plaintiff filed its request for an order
relieving it of the obligation to respond to interrogatories
and all other discovery pertaining to damages until the
issue of title to the land had been resolved. (Filing 238).
On June 6, 1989, the magistrate stated that the plaintiff
had responded to some interrogatories, but had failed to
answer the interrogatories concerning damages. It further
found that plaintiff had not designated its experts, except
for its statement that it intended to rely on the same
evidence in the record from the prior trial.
The court noted that plaintiff had not answered discov-
ery requests despite specific court orders. Instead, the
plaintiff appeared to rely on the filing of additional motions
to reconsider and motions to stay rather than comply with
court orders. Because nothing had persuaded the plaintiff
to respond to these court orders, sanctions were appro-
priate. The magistrate held that because the plaintiff had
failed to designate its expert witnesses and would not
designate expert testimony in addition to that presented
at the first trial, the plaintiff would be limited to the
expert opinions given at the first trial. Because of
plaintiff's failure to provide discovery introducing evidence
on that issue at trial.
10a
On June 9, 1989, the magistrate scheduled a final pre-
trial conference for September 8, 1989, at 11:00 a.m. and
ordered the parties to meet prior to that time to prepare
and sign a proposed pretrial order. In his order he set
out the information required to be contained in the pro-
posed pretrial order and, in addition, attached a copy of
the local rules to be followed. (Filing 263). On August 18,
1989, the final pretrial conference was rescheduled to 1:00
p.m. on September 8, 1989. The magistrate again ordered
the parties to submit a proposed pretrial order by not later
than September 1, 1989. (Filing 315).
The parties met on August 22 and 23, 1989, to prepare
the proposed pretrial order. Soon after this meeting the
defendants filed motions for sanctions, alleging that the
plaintiff and its attorney were substantially unprepared to
participate at the meeting and had failed to participate in
good faith. The motions also alleged that the proposed
pretrial order sent by the plaintiff to the defendants on
or about September 6, 1989, did not comply with the form
required by the June 9, 1989, order.
The pretrial conference was held on September 8, 1989.
In his order dated September 13, 1989, the magistrate
described the September 8 hearing as one in which the
court was unable to accomplish virtually any of the ob-
jectives of a final pretrial conference due to the complete
failure to provide an acceptable proposed retrial order as
directed in his June 9, 1989, order. The plaintiff was or-
dered to submit a revised proposed pretrial order on or
before September 25, 1989. (Filing 332).
On September 29, 1989, Judge McManus considered the
plaintiff's appeal of the magistrate’s order of June 6, 1989,
that prohibited the plaintiff from calling additional expert
witnesses. (Filing 370). The judge concluded that the mag-
istrate had been correct in finding that the plaintiff had
failed to provide any meaningful statement of opinions and
facts about which the experts were expected to testify and
lla
had failed to provide a summary of the grounds for each
expert’s opinion. It found that “(t]he Tribe has violated
both the letter and the spirit of FRCP 26(b\4)’’. Not-
withstanding this fact, the court reversed the sanction im-
posed on the ground that the plaintiff had disclosed the
names of its experts and that the defendants were familiar
enough with the litigation that they would not be severely
prejudiced by allowing the plaintiff's additional experts to
testify. The court also noted that the proposed pretrial
order that was to have been filed by the plaintiff on or
before September 25, 1989, had not been filed. The plaintiff
had instead filed a motion to reconsider the magistrate’s
order of September 13, 1989, which had directed the
plaintiff to file the proposed pretrial order by September
25, 1989. (Filing 347). In response to this motion Judge
McManus stated:
The Tribe’s dismal history of noncompliance with the
orders of this court is well documented. The Tribe’s
failure to submit the revised proposed final pre-trial or-
der on time is yet another example of its noncompliance.
The mere filing of the Tribe’s motion did not stay or
extend the deadline, and the Tribe relies upon such tac-
tics at its peril. This matter shall be dismissed with
prejudice unless by not later than noon, Monday, Oc-
tober 16, 1989, the Magistrate has received from the
Tribe the previously required revised proposed final pre-
trial order in the form required by this court. The Tribe
is warned that no intervening motion shall operate to
stay or extend this deadline. (Filing 370, p. 4)
The court then ordered that the matter would be dismissed
in its entirety, with prejudice, if the above-quoted require-
ments were not met. (Filing 370).
On October 5, 1989, Judge McManus considered the
defendants’ motions for sanctions relating to the meeting
on August 22-23, 1989, and held that, pursuant to Fed.
R. Civ. P. 16(f), the defendants were entitled to an award
12a
of all of their reasonable fees and expenses related to their
attendance at the meeting. In support of this order for
sanctions the court stated:
Upon review of a transcript of the preliminary pretrial
hearing held on August 22 and August 23, 1989, the
court finds that the Tribe was unprepared, combative,
and failed to endeavor in good faith to satisfy the pur-
pose of that conference or the final pretrial conference
~ held in Sioux city on September 8, 1989. Perhaps the
best characterization of the Tribe’s lack of good faith
came early in the conference when one of the defendants
was inquiring about the Tribe’s failure to bring a pro-
posed statement of undisputed facts to the conference.
In reply, the Tribe’s counsel made the following remark:
“T never agreed on anything in 13 years. We'll just go
ahead that way” (T.19). (Footnote omitted). The Tribe’s
lack of preparation and failure to follow the court’s
standard form for pretrial orders resulted in the Tribe’s
submission of a wholly unacceptable proposed final pre-
trial order, and a substantially futile pretrial conference
on September 8, 1989. Due to the Tribe’s lack of good
faith, submission of the final pretrial order has been
delayed and another hearing will have to be held. Sanc-
tions against the Tribe are appropriate. (Filing 383, p.
5).
On October 16, 1989, the plaintiff filed a ‘Motion to
File Pre-Trial Order’’ asking the court to accept the ac-
companying proposed pretrial order. In its motion the
plaintiff argued that the required form of the pretrial order
was not suitable for actions of this character. The plaintiff
went on to say that, while it had attempted to conform
to the requirements of a pretrial order, ‘‘[t]he magnitude
and complexities of the issues; the listing of well over 500
exhibits by the parties, and an equal number of objections
to those exhibits have created a tremendous burden upon
plaintiff Tribe...” (Filing 401, p. 2). The plaintiff further
13a
argued that although the court granted it until October
16, 1989, to file the proposed order, the court also ordered
the plaintiff to make available its experts for depositions
in Sioux city which resulted in plaintiff's counsel being
away from his office from October 9-14, 1989, placing
“another almost impossible burden on Plaintiff Tribe.’’ (Fil-
ing 401, p. 3).
In response to the court’s October 5, 1989, order,
plaintiff petitioned Judge McManus to recuse himself from
further participation in this case. (Filing 417). It argued
that Judge McManus had repeatedly and unjustly denied
the Tribe its day in court, and that he was guilty of gross
improprieties, in that 1) he had an unvarying support for
the defendants, including their attorneys who had prac-
ticed fraud upon the Tribe, and 2) he had refused to pro-
tect the Tribe from being bound by the forced, fraudulent
representation by the attorneys in the Department of Jus-
tice. Plaintiff asked that all sanctions be suspended pend-
ing a full hearing and that trial proceed before an unbiased
judge who will ensure a fair retrial. Judge McManus did
subsequently recuse himself, but on grounds unrelated to
any of the allegations contained in the plaintiff’s petition.
On January 16, 1990, the magistrate denied plaintiff's
motion to file the proposed pretrial order. (Filing 458). His
order states: ‘‘The latest proposed final pre-trial order sub-
mitted by the plaintiff does not comply with previous or-
ders directing its preparation... The proposed final pre-
trial order does not comply with court orders and does
not reflect the status of this litigation. This motion is
denied.” (Filing 458, p. 1-2).
DISCUSSION
The defendants now ask for sanctions due to plaintiff's
failure to file an acceptable proposed pretrial order as
required by the court’s order of September 29, 1989. The
plaintiff presents a number of arguments in opposition to
l4a
the defendants’ motions. One of its arguments against dis-
missal is that the defendant State of lowa is acting in
total disregard of professional constraints and is seeking
to mislead me into disposing of the case, which would
result in the defendants obtaining their desired outcome
of avoiding the exposure of their fraud, their lack of title,
and their inability to properly defend their claims in open
court. (Filing 472, p. 28-29). I see nothing to support that
argument; I must find it to be without merit.
Next, the plaintiff contends that the magistrate did not
intend to dismiss the case and that the magistrate did not
have the authority to dismiss the case. What the magis-
trate intended is of no consequence. He did not dismiss
the case, and his January 16, 1989, order does not purport
to dismiss it. Instead, he found that the plaintiff's proposed
pretrial order did not conform to court requirements. This
was within his authority. I will treat the magistrate’s find-
ings as a proposed finding of fact. Pursuant to Fed. R.
Civ. P. 72(b) “[t]he district judge to whom the case is
assigned shall make a de novo determination upon the
record, or after additional evidence, of any portion of the
magistrate’s disposition to which specific written objection
has been made in accordance with this rule.’’ (Emphasis
supplied).
Section 72(b) allows a party 10 days after receipt of the
magistrate’s recommendation to serve and file specific
written objections to the proposed findings and recoin-
mendations. If no timely objection is filed, the district
court need only satisfy itself that there is no error on the
face of the record in order to accept the recommendation.
Fed. R. Civ. P. 72(b) Notes of Advisory Committee, Branch
v. Martin, 886 F.2d 1043 (8th Cir. 1989).
The magistrate’s order was filed January 16, 1990. (Fil-
ing 458). The certificate of service attached to the order
shows the mailing of copies of the order to all parties,
including counsel for the plaintiff, on that same date. The
15a
plaintiff did not file its response (Filing 472) until March
13, 1990, clearly outside the 10-day time limit for filing
an objection. My determination of the issue of the pro-
priety of the magistrate’s ruling is governed by the clearly-
erroneous or contrary-to-law standard, but I choose to pro-
ceed under the stricter requirements of a de novo review
because of the critical nature of the issue.
The plaintiff has raised a variety of other issues in its
response, all of which are without merit or outside the
jurisdiction of this court to decide.
The plaintiff alleges that Judge McManus is guilty of
four violations of judicial integrity that denied the plaintiff
its right to judicial due process. First, by virtue of his
January 26, 1976, order that consolidated the cases, he
subjected the plaintiff Tribe to a fraudulent and constricted
complaint and forced upon the plaintiff Tribe the fraud-
ulent representation of Evan L. Hultman, United States
Attorney. Second, the judge violated the plaintiff’s rights
by granting the defendant’s motion in limine. Third, he is
engaged in an ongoing effort to unjustly disburse plaintiff
Tribe’s $950,000.00 that is held in the court’s General
Registry Fund. Fourth, he accepted a fraudulent agree-
ment by the Department of Justice attorneys to pay cer-
tain defendants for improvements made to the land. The
plaintiff charges that Judge McManus’ violations of the
plaintiff's right to judicial due process are attributable to
his abdication to Magistrate Hodges of constitutional power
vested by Article III. Further, the content and impact of
his order of consolidation, framed precisely to force upon
the Tribe the fraudulent constricted complaint and the
fraudulent representation by Hultman, can be understood,
the Tribe charges, only as undue influence being exerted
upon the judge and Magistrate Jarvey.
I do not sit as an appeals court judge to review the
correctness of the district court’s previous decisions. These
allegations will not be discussed.
l6a
In this same vein the plaintiff wishes to relitigate a
variety of past orders, including 1) the order of October
5, 1989, wherein the court found the plaintiff was ‘‘un-
prepared, combative and failed to endeavor in good faith
to satisfy the purpose of [the pretrial] conference’’; 2) the
order of October 5, 1989, wherein the court sustained the
defendants’ motions in limine (referred to by the plaintiff
as a “gag order’’) prohibiting the plaintiff from referring
to its fraudulent misrepresentation claim against 38 the
U.S. Justice Department and former U.S. attorney Hult-
man; 3) the order of September 29, 1989, wherein the
court found the plaintiff to have ‘‘violated both the letter
and the spirit of FRCP 26(b) (4); and 4) the judge’s Jan-
uary 12, 1990, order of recusal exempting from that order
the distribution of $950,000.00 held in the general registry
fund.
As is evident, a good portion of the plaintiff's response
consists of attacks on past decisions of the district court.
It is not my function, nor do I have the authority, to
review those past decisions. The parties are not free, by
way of my appointment to this case, to relitigate all that
has gone before.
Next, the plaintiff explains that he refrained from pre-
paring a new pretrial order (after October 16, 1989) while
Judge McManus was presiding because the plaintiff's mo-
tion for recusal had been pending from October 24, 1989,
until January 12, 1990, when the judge recused himself.
On February 12, 1990, I was designated to proceed with
this trial. The plaintiff states: ‘“Most assuredly the ultimate
pre-trial order must conform to and carry out Judge Ur-
bom’s directions.”’
The local rules of the United States District Court for
the Northern District of Iowa, Western Division remain
in full force and effect. The requirements of the proposed
pretrial order have not changed by virtue of my appoint-
ment.
17a
CONCLUSION
I conclude that sanctions are warranted for the plaintiff's
failure to file an adequate PPTO. The issue now is whether
that sanction should be dismissal of the plaintiff's case, or
some other sanction(s). Although Judge McManus’ order
decreed dismissal with prejudice, I think I must explore
all other options because of the drastic nature of dismissal
with prejudice. Other possible sanctions include disquali-
fying plaintiff's present counsel from further participation
in this case, requiring plaintiff's counse!] to associate with
local counsel, prohibiting plaintiff from presenting any ex-
pert testimony in this trial other than that which is con-
tained in the PPTO, or prohibiting plaintiff from presenting
any expert testimony in this trial other than that which
is contained in the PPTO, or prohibiting plaintiff from
presenting any testimony regarding Tracts II and III. I
intend to hold a hearing to determine the proper sanc-
tion(s). The parties will have an opportunity to argue their
positions on the possible sanctions I have listed or any
other that appears appropriate.
IT IS THEREFORE ORDERED that a hearing on the
issue of sanctions inherent in the defendants’ motions to
dismiss shall be held on the 15th day of May, 1990, be-
ginning at 10:00 a.m., in Sioux City, Iowa.
Dated May 4, 1990.
BY THE COURT
/s/ Warren K. Urbom
United States District Judge
18a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
C 75-4067
OMAHA INDIAN TRIBE,
Plaintiff,
VS.
AGRICULTURAL & INDUSTRIAL
INVESTMENT CO., et al.,
Defendants.
FILED
SIOUX CITY DIV. OFFICE
NORTHERN DISTRICT OF IOWA
10:10 am
MAY 7 1990
WILLIAM J. KANAK - Clerk
By: M. Hoch, Deputy
MEMORANDUM AND ORDER ON SANCTIONS
REGARDING PRETRIAL CONFERENCES OF
AUGUST AND SEPTEMBER 1989
By order of October 5, 1989, (Filing 383) Judge Mc-
Manus found that the plaintiff Tribe was unprepared for
the preliminary conference held on August 22 and 23,
1989, and that the “‘Tribe’s lack of preparation and failure
to follow the court’s standard form for pretrial orders
resulted in the Tribe’s submission of a wholly unacceptable
19a
proposed final pretrial order, and a substantially futile pre-
trial conference on September 8, 1989.”’ Sanctions, in the
form of an award to the defendants of all reasonable fees
and expenses related to their attendance at both the pre-
liminary conference on August 22 and 23, 1989, and the
pretrial conference held on September 8, 1989, were or-
dered by the court. The defendants were given until Oc-
tober 16, 1989, to submit their affidavits setting forth their
reasonable fees and expenses incurred in connection with
those meetings. The Tribe was given until October 19,
1989, to file a response.
Statements of fees and expenses were filed by
defendants State of Iowa and Iowa Department of Natural
Resources. (Filing 393); Agricultural & Industrial Invest-
ment Co., (Filing 395); Wilson Lakin, R.G.P. Inc., and
Rupp, (Filing 397) and Edna Boulden Miller, et. al., (Filing
398).
On October 19, 1989, the Tribe filed a Motion for Ex-
tension of Time in Which to File a Motion for Reconsi-
deration of the Court’s Order of October 5, 1989. (Filing
410). The motion asks for an extension of time, until Oc-
tober 23, 1989, due to the fact that the October 5, 1989,
order involved harsh and unjust sanctions against the
plaintiff. Plaintiff stated that it did not receive the last of
the defendants’ alleged expenditures until October 7, 1989,
and that plaintiff needed to separately consider the alleged
costs presented by the defendants. No ruling on plaintiff's
motion appears in the record. No further response by the
plaintiff has been filed in opposition to the sanctions.
The defendants have recently filed applications for or-
ders requiring the plaintiff to pay the defendants’ fees and
expenses pursuant to the October 5, 1989, order. (Filings
464, 465, 467 and 471). Each of these applications points
out the plaintiff's failure to file any resistance to the order
for sanctions.
Diem
20a
Essentially, I shall award fees and expenses as re-
quested, although I have reduced some of them, because
it appears to me that some of the planning that was done
was not altogether wasted. The September 29, 1989, order
of Judge McManus, filing 370, appears to have intended
that sanctions be against the Tribe rather than against
counsel. Because there is some question about that, I shall
order that the issue of whom the sanction should be against
will be discussed at the hearing on May 15, 1990, at 10:00
a.m. in Sioux City, Iowa.
IT THEREFORE IS ORDERED that:
(1) the motion for extension of time in which to file a
motion for reconsideration of the court’s order of October
5, 1989. filing 40, is denied;
(2) a sanction in the form of an award to defendants
of reasonable fees and expenses related to attendance at
the preliminary conference on August 22 and 23, 1989,
and the pretrial conference on September 8, 1989, are
awarded as follows:
To the State of Iowa and Iowa 4,764.00
Department of Natural Resources ............ $
To Agricultural & Industrial Investment 3,188.69
COR, ‘sceniecsecalanuanisisdiacaadabandeiebdocaiemeinedeaieesisenetees $
Be PM Ge GD - vsccacconcecttenewsctndustenn $ 4,166.00
To Charles and Florence Lakin ............... $ 3,286.85
pM FR Rene aR Rb a bate rk Oe te $ 3,699.45
ee EBs IE inceushccnenntnenscsseomocaneune $ 1,968.00
To Edna Boulden Miller .....................c000 $ _ 3,132.28
TOTAL $ 24,205.27
(3) resolution of the question of whether the sanction
should be against the Tribe or its counsel will be subject
2la
of the hearing on May 15, 1990, at 10:00 a.m. in Sioux
City, Iowa.
Dated May 4, 1990.
BY THE COURT
is) Warren K. Urbom
United States District Court
22a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
C 75-4067
OMAHA INDIAN TRIBE,
Plaintiff,
VS.
AGRICULTURAL INDUSTRIAL
INVESTMENT CO., et al.,
Defendants.
FILED
SIOUX CITY DIV. OFFICE
NORTHERN DISTRICT OF IOWA
11:10 am
MAY 29 1990
WILLIAM J. KANAK - Clerk
By: M. Hoch, Deputy
ORDER ON SANCTIONS
Pursuant to the memorandum and order on sanctions
regarding pretrial conferences of August and September
1989 (Filing 482):
IT IS HEREBY ORDERED that the plaintiff Omaha
Tribe and plaintiff's counsel, Mr. William H. Veeder, are
jointly and severally liable for a sanction in the form of
an award to defendants of reasonable fees and expenses
related to attendance at the preliminary conference or
September 8, 1989, as follows:
23a
To the State of Iowa and Iowa 4,764.00
Department of Natural Resources ............ $
To Agricultural & Industrial Investment 3,188.69
or al caseneuesoononenss $
EEE Ge IID cocccconscccenscccccacvucceees $ 4,166.00
To Charles and Florence Lakin ............... $ 3,286.85
SE a $ 3,699.45
IE iE IN ses cisccnnessensuscsesnsocesooess $ 1,968.00
To Edna Boulden Miller .....................00008 $ _3,132.28
TOTAL $ 24,205.27
The total amount is to be paid to the Clerk of the United
States District Court for the Northern District of Iowa,
Western Division by no later than 90 days from the date
of this order.
Dated May 24, 1990.
BY THE COURT
/s/ Warren K. Urbom
United States District Judge
24a
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
C 75-4067
OMAHA INDIAN TRIBE,
Plaintiff,
VS.
AGRICULTURAL INDUSTRIAL INVESTMENT CO., et al.,
Defendants.
FILED
SIOUX CITY DIV. OFFICE
NORTHERN DISTRICT OF IOWA
11:10 am
MAY 29 1990
WILLIAM J. KANAK-Clerk
By: M. Hoch, Deputy
MEMORANUUM AND ORDER ON SANCTIONS
PURSUANT TO THE MAY 15, 1990, HEARING
Following the hearing in Sioux City, Iowa, on May 15,
1990, I find that I must dismiss this case with prejudice.
I do it with reluctance. The sanction is a distasteful one.
So, however, is the record of past and intended future
noncompliance. The course of the case has been tortuous
and torturesome. It now must end.
In addition to the explanation given in my May 7, 1990,
memorandum I now respond to arguments earnestly ad-
25a
vanced by the plaintiff's counsel at the May 15, 1990,
hearing.
The plaintiff argues that my May 7, 1990, memorandum
and order (Filing 483) failed to consider four motions pre-
viously filed by the plaintiff. These motions are:
1. The October 24, 1989, motion to recuse Judge
McManus from further participation. (Filing 417).
2. The December 5, 1989, motion entitled ‘Plaintiff
Omaha Indian Tribe moves this court for an order
(1) to set down for a hearing all of defendants’ pend-
ing motions to dismiss; (2) to hear and determine
on the merits the charges that plaintiff Tribe delib-
erately misled defendants; (3) to preclude use of dep-
ositions of plaintiff Tribe’s expert witnesses; and (4)
plaintiff Tribe’s response to defendants’ charges with
memorandum in support.” (Filings 449, 450).
3. The February 14, 1990, motion to recuse Judge
McManus (filed in the consolidated portion of this
case, that is, the first case).
4. The March 13, 1990, motion entitled ‘“‘Motion to have
Honorable Warren K. Urbom hear and determine is-
sues presented here and response to defendants’ mo-
tions to dismiss with prejudice. (Filing 472).
1. The October 24, 1989, motion (Filing 417).
This motion petitions Judge McManus to recuse himself
from further participation in the case. Its general argu-
ment for recusal is that Judge McManus’s order of October
5, 1989, (in which, among other things, the Tribe was
ordered to make their experts available for depositions on
or before October 13, 1989, the Tribe was ordered to pay
sanctions for its conduct at the August 22-23, 1989, pre-
liminary conference, and the defendants’ motion in limine
to prohibit reference to the fraud issue was granted), dem-
26a =
onstrated bias and prejudice to the Tribe which had been
demonstrated since at least July 1, 1975.
The plaintiff describes events relating back to 1975 to
support its contention that Judge McManus should recuse
himself, the gist of which is that he forced upon the Tribe
the fraudulent representation of Hultman, Flint, and an-
other attorney fron. zhe Department of Justice, and that
on April 5, 1976, he forced upon the Tribe the fraudulent
complaint in the first case. (Filing 417, p. 5). The plaintiff
argues that during the pendency of its appeal to the Eighth
Circuit in the first case, the court forced the Tribe to
continue to participate in discovery in this current case
irrespective of the fact that the matter had already been
tried by all parties. Because the court threatened the Tribe
that failure to participate in discovery would result in a
dismissal with prejudice, the Tribe ‘‘acceded to the dis-
covery demands as harshly enforced by this court.”’ (Filing
417, p. 8).
An example of the court’s discriminatory practice against
the Tribe, it alleges, is that the court totally ignored the
Tribe’s burden to comply with the October 16, 1989, dead-
line for filing the proposed pretrial order when it ordered
the Tribe to make its expert witnesses available for dep-
ositions not later than October 13, 1989. Further, when
plaintiff requested that it be allowed to depose defendant
Iowa’s witnesses before allowing the deposing of its ex-
perts, Magistrate Jarvey declared that the Tribe could not
impose a condition to the deposing of the Tribe’s witnesses
by demanding to depose Iowa’s witnesses. Magistrate
Jarvey stated:
... Mr. Veeder, you, in placing such a condition on the
State’s participation, you are on very thin ice, and
frankly for the plaintiff's sake, I think it is lucky that
you guys called me for fear of what might happen had
the plaintiff persisted in placing that condition on the
State of Iowa’s participation in the deposition.
27a
(Filing 417, p. 12-18).
Regarding the granting of the motion in limine on the
fraud issue, the Tribe states that the court acted to deny
the basic constitutional rights of the plaintiff, its counsel,
its expert witnesses, and members of the Omaha Indian
Tribe. Moreover, the Tribe claims that the Eighth Circuit,
in Omaha Indian Tribe v. Jackson, et al., 854 F.2d 1089
(8th Cir. 1988); cert. denied, __ U.S. __ , 109 S.Ct. 2429,
(May 30, 1989), relied in error on an order of this court
entered in 1985 that declared the Tribe’s fraud charges
to be “‘... clearly untimely and merit no serious attention
or consideration.”’ (Filing 417, p. 16), The Tribe claims
that if the defendant Iowa thought that the Tribe’s charges
of fraud were without merit it would not have been over-
come by the anxieties of exposure that gave rise to their
motion in limine.
Regarding discovery, the plaintiff alleges that 1) it was
denied its repeated requests to convene a pretrial confer-
ence to resolve the practice and procedures to be adhered
to in the second trial; 2) the court waited too long to
reverse the Magistrate’s sanctions of June 6, 1989; 3) the
Tribe was forced to join in a pretrial conference with
defendants Iowa, Wilson, R.G.P. Inc., et al., who were
beneficiaries of the fraud practiced upon the Tribe; 4) the
Tribe was fully prepared at the August 22-23, 1989, pre-
trial conference; 5) the plaintiff cannot be sanctioned for
failing to arrive at any “‘true and undisputed facts” in the
pretrial order when there are none; 6) the court has er-
roneously stated that the Tribe failed to endeavor in good
faith to satisfy the purpose of the September 8, 1989,
pretrial conference; and 7) the court imposed upon the
plaintiff the obligation of preparing a pretrial order using.
a format which cannot possibly be followed in setting forth
the highly complex issues of fact and law involved in this
case. (Filing 417, p. 17-25).
28a
Based on these arguments, the plaintiff prayed that 1)
Judge McManus recuse himself and that a special master
be appointed to hear the Tribe’s charges that it has been
deprived of its day in court by discriminatory practices;
2) that it be given a full and fair hearing in regard to the
charges that the Tribe failed to act in good faith in for-
mulating and presenting the pretrial order; 3) to suspend
all of the sanctions imposed on the Tribe until the facts
have been reviewed and adjudged by an unbiased special
master; and 4) to proceed to trial before an unbiased judge
who will ensure a fair retrial with a full review of the
fraud practiced upon the Tribe.
In an order dated January 12, 1990, (Filing 886 in the
consolidated case), Judge McManus, who was on senior
status, recused himself based on the fact that the parties
were unwilling to consent to move the trial to Cedar Rap-
ids. In light of the estimated length of trial, physical cir-
cumstances, and other commitments, he was unwilling and
unable to undertake trial of the case in Sioux City. He
further ordered that the Tribe’s recusal motion, discussed
above, was mooted by this order of withdrawal.
At the May 15, 1990, hearing the plaintiff argued that,
regardless of the fact that its motion had been declared
moot, I should nevertheless consider the statements and
allegations contained within the motion. Having done so,
the motion is still moot and I will not purport to treat it
otherwise.
2. December 5, 1989, motion (Filing 449) and memorandum
in support (Filing 450).
The plaintiff requests a hearing to respond to the
defendants’ charges in their motions to dismiss that the
Tribe, its counsel and its expert witnesses have deliber-
ately and intentionally attempted to mislead the defendants
by virtue of the Tribe’s responses to interrogatories and
29a
in its proposed pretrial order regarding avulsive move-
ments.
In response to the defendants’ charges that it improp-
erly resisted discovery procedures, the plaintiff explains
that the court forced discovery on it before the exhaustion
of its appeal in the consolidated case. The plaintiff had
appealed from the May 30, 1987, final judgment, and as-
serted, among other things, that the judgment was the
product of the forced, fraudulent representation on the
Tribe and that plaintiff was being forced to retry title to
approximately 3500 acres of land outside the Barrett
Meander Line. It argues that this court, in total disregard
of the plaintiff's right to be heard on appeal and at the
behest of the defendants, ordered the plaintiff to engage
in discovery while the appeal was still pending. By forcing
the plaintiff to comply with discovery processes, it says,
the defendants obtained great advantages over the plaintiff
by constantly threatening it with sanctions. Unless and
until the U.S. Supreme Court refused to hear plaintiff's
charges (which occurred on May 30, 1989), the plaintiff
argues that it should not have been coerced into partici-
pation in discovery.
I do not agree that the filing of an appeal relating to
the Blackbird Bend area within the Barrett survey pros-
cribes the continuing process of discovery as to Blackbird
Bend land outside the Barrett survey or to land in Monona
or Omaha Mission Bends. The pendency of an appeal in
the consolidated portion of this case is not a valid excuse
for plaintiff's resistance to participation in discovery re-
lating to the unconsolidated portion of this case.
The plaintiff discusses several reasons why it believes
the defendants are ‘‘feigning’’ surprise at the revelation
of the new avulsions.
The first is that the defendants were aware of extensive
drilling conducted by the plaintiff which the plaintiff states
was done with the objective of proving avulsive movements
30a
of the Missouri River. As to defendant Miller, et al., the
plaintiff argues that Miller’s counsel received a copy of a
plat locating the line of drill holes and the areas to which
access was requested for Elmer Clark and Charles Robin-
son to conduct core drilling and visual observation. Fur
thermore, the plaintiff says that counsel for Miller agreed
to allow the plaintiff access to the defendants’ land for
drilling purposes, and was present during drilling. As to
defendant Agricultural, the plaintiff states that counsel for
Agricultural agreed to allow Dr. Robinson to enter Ag-
ricultural’s property for purposes of drilling. As to
defendant Iowa, the plaintiff states that Gerald Jauron,
one of Iowa’s experts, was present during drilling at Mon-
ona and Omaha Mission Bends. Similarly, defendants
McGuire and Barton and defendant Rupp granted access
to the plaintiff to conduct drilling on their land.
The fact that the defendants cooperated with the
plaintiff's discovery does not equate with a finding that
the defendants knew the results of the drilling. It does
not support a finding that defendants should have known
that the plaintiff's proposed pretrial order submitted on
October 16, 1989, was incomplete, nor would it put the
defendants on notice that the plaintiff's answers to Ag-
ricultural’s interrogatories were incomplete. The plaintiff's
argument that the defendants were aware that the
plaintiff's theory of the case was that the Missouri river
moved by avulsion is not sufficient to infer knowledge upon
them of specific avulsive movements.
Second, the plaintiff argues that it gave all of its ‘“‘basic
data’, including all drill logs utilized by the plaintiff in
formulating and proving the avulsive movements of the
Missouri River, to defendant Agricultural on July 17, 1989,
who shared it with the other defendants. The further ar-
gument is that Agricultural was also provided with
plaintiff's Exhibit 448, which plaintiff describes as setting
forth in detail the areas in which it conducted intensive
3la
drilling in Monona and Omaha Mission Bends in prepa-
ration for establishing avulsive movements.
The plaintiff does not specifically contend that it di-
vulged the six avulsions discovered during depositions in
its “basic data’. Rather, the basic data is described as
having been ‘‘utilized by Plaintiff Tribe’s experts in for-
mulating and proving its claim to title to the lands now
occupied by Defendant Agricultural.’ (Filing 449, p. 29).
There is no showing that the plaintiff shared the conclu-
sions reached by its experts, based on this basic data, with
the defendants. Similarly, Exhibit 448, in plaintiff's own
words, “graphically displays all of the drilling conducted
by Plaintiff Tribe in its preparation to establish the avul-
sive movements of the Missouri River, including drilling,
December 1973; drilling, March, [sic] 1976; hand augering,
March 1976; drilling, November 1978; drilling, April 1981;
and drilling, 1986.’’ (Emphasis supplied). (Filing 449, p.
20). I also note that in the plaintiff's proposed pretrial
order it describes the purpose of Exhibit 448 as being ‘‘To
show with specificity the exact locations of holes drilled
in Monona Bend area to determine materials at depth
which support the Omaha Tribe’s claim that the land is
accretions to the right bank of the Missouri River.”’ (Tracts
II and III, p. 129). This is not sufficient to alert the
defendants to specific avulsions claimed by the plaintiff.
Furthermore, defendant Agricultural states in its re-
sponse to this filing that Agricultural did at one time have
the drilling logs, but that plaintiff's counsel and Robinson
insisted they be returned, which they were. On November
8, 1989, counsel for Agricultural sought by telephone to
require the plaintiff to again furnish the drilling logs and
drilling analysis so that Agricultural could make sense of
the plaintiff's new ‘‘geological exhibits’. Agricultural con-
tends that the plaintiff did not produce certain ‘‘geological
exhibits’’ when the drill logs were previously provided.
Agricultural states that plaintiff's counsel agreed to make
the drill logs and drilling analysis available if Agricultural
32a
agreed to pay $150.00 for the copies, which it did. On
November 20, 1989, counsel for Agricultural sent a letter
to plaintiff's counsel stating that a check was enclosed and
that the drilling logs had not yet been received. Plaintiff's
counsel responded on December 6, 1989, that he was re-
turning the $150.00 check, and that it was his understand-
ing that Dr. Robinson was also requiring payment for the
costs of the time and reproduction for the resubmittal of
the well logs. Counsel for Agricultural replied on December
13, 1989, that he wanted a confirmation on whether or
not the drill logs would be sent so that he could seek
appropriate judicial relief if necessary. Agricultural states
that as of the date of its response, (December 28, 1989)
the drilling logs and drilling analysis have not been re-
ceived nor has plaintiff's counse! responded to the Decem-
ber 18, 1989, letter. At the hearing conducted May 15,
1990, counsel for Agricultural said it still had not received
any drilling logs.
Third, the plaintiff argues that its experts fully ex-
plained their positions during their depositions in late Oc-
tober 1989. For instance, at the October 24, 1989,
deposition, Dr. Robinson explained in detail the drilling
areas and cross-sections of channel that demonstrated the
avulsive character of the river movements. Likewise, dur-
ing Elmer Clark’s deposition, Clark utilized the plaintiff's
exhibits and the basic data that had been submitted on
July 17, 1989, to explain the movements in Monona Bend.
In sum, the plaintiff asserts that the defendants were pres-
ent during nine days of depositions and had an opportunity
to interrogate the plaintiff's witnesses in depth and had
ai Of the plaintiff's exhibits to use at the depositions.
The premise of this argument seems to be that the
plaintiff could not have failed to disclose any information
because the defendants found out about it anyway. This
overlooks the entire reason the motions to dismiss were
filed by the defendants: to protest the fact that the avul-
sions had not been disclosed to them prior to the depo-
33a
sitions as they should have been. The plaintiff's argument
in this regard is without merit.
Fourth, the plaintiff states that it is experiencing shock
to hear Iowa’s assertion that six new avulsions were dis-
covered during depositions. It contends that it does not
have any idea to what they are referring and wishes the
defendants would tell it what they are talking about. I
have previously set out the six avulsions in my memoran-
dum and order of May 7, 1990, (Filing 483) and will not
restate them. I do note that on pages 51 and 52 of this
motion the plaintiff describes three of the six avulsions of
which it purports to have no knowledge.
Finally, the plaintiff asserts that even assuming that the
defendants were not fully aware of the claimed avulsions,
they cannot argue that they were surprised or prejudiced
because the original November 6, 1989, trial date was
continued, and they’ve now had sufficient time to prepare.
The plaintiff overlooks the fact that the delay was due in
part to its own actions. The plaintiff will not be allowed
to benefit from its own concealment. The history of this
case shows that the plaintiff's failure to disclose in a timely
manner the anticipated testimony of its experts is not an
isolated incident of simple inadvertence. Rather it is only
one incident in a series of many that demonstrate the
plaintiff's unwillingness to abide by the orders of this court.
In its memorandum in support of the motion (Filing
450), the plaintiff cites Outley v. City of New York, 837
F.2d 587 (2nd Cir. 1988). The Second Circuit ruled that
the district court had erred in precluding the testimony
of two of the plaintiff's eyewitnesses as a sanction for
inadvertent failure to supplement its previous interroga-
tory response regarding the addresses and telephone num-
bers of the witnesses. It noted that there was no suggestion
in the record that the failure of plaintiff's counsel was
anything but a good-faith oversight of an inexperienced
practitioner. Furthermore, defendants would not be greatly
34a
prejudiced by their testimony because it would not be tech-
nical or specialized evidence of an expert, but rather the
simple observation of a single incident. There had been no
other continuances in the trial.
I find that Outley is highly distinguishable from the facts
in the present case. An isolated good faith inadvertence
is a far cry from a proper description of the behavior of
the plaintiff and its counsel here.
The plaintiff also cites Edgar v. Slaughter, 548 F.2d 770
(8th Cir. 1977) wherein the court reiterated that the harsh
remedies of dismissal and default should be used only when
the failure to comply is due to willfulness, bad faith or
any fault of the plaintiff. The court goes on to admonish
that:
Prior to dismissal or entering a default judgment, fun-
damental fairness should require a district court to enter
an order to show cause and hold a hearing, if deemed
necessary, to determine whether assessment of costs and
attorney fees or even an attorney’s citation for contempt
would be a more just and effective sanction. 548 F.2d
773.
As the record shows, I have already held such a hearing
on May 15, 1990, the purpose of which was to explore all
other options because of the drastic nature of dismissal
with prejudice. The parties were given an opportunity to
argue their positions on the sanctions each felt would be
appropriate. The defendants were unanimous in their op-
position to any sanction other than dismissal. The plaintiff
suggested no sanction; it simply opposed any sanction.
It is true that further delay would result if I disqualified
plaintiff's counsel from further participation in this case.
His removal would cause this matter to be continued for
an indefinite period of time while the Tribe attempted to
obtain new counsel, and if new counsel were obtained, for
that person to prepare adequately this highly technical and
| a ii
35a
factually complex case. As counsel for Edna Boulden Miller
et al. pointed out, many of his clients are elderly and
cannot afford further time delay. An order disqualifying
the plaintiff's counsel would be more of a punishment to
the defendants than it-would be to the plaintiff.
The possibility of requiring the plaintiff's counsel to as-
sociate with local counsel is no longer an option. I was
informed at the May 15, 1990, hearing that the plaintiff's
counsel began an association with local counsel sometime
around 1975, which lasted until fairly recently. The record
is clear that having local counsel has not and is not going
to remedy the problems that continue to recur.
A third option was to limit the plaintiff to that expert
testimony that was contained in the October 16, 1990,
proposed pretrial order. I reject that as an option, because
I do not think it would be possible to limit the opinions
of the experts, due to the general wording in the proposed
pretrial order. For instance, the plaintiff stated that Elmer
Clark ‘“‘will testify with precision and exactitude as to the
various locations of the Missouri River from two years
prior to the Omaha Indian Treaty of 1854 to date.” State-
ments such as this are so general that to limit the plaintiff
to the proposed pretrial order is not to place any limits
at all.
Limiting the plaintiff's experts to testimony given by
them at the trial of the consolidated cases would be tan-
tamount to a dismissal with prejudice. It would accomplish
no appropriate purpose. Furthermore, not all of the
defendants here were participants in the consolidated por-
tion of the case.
Previous sanctions have failed to ensure compliance with
the orders of this court. Monetary sanctions have not been
successful in inducing compliance. The plaintiff and its
counsel have only recently satisfied their obligations to pay
monetary sanctions as ordered by the court in the con-
solidated case in 1987. On May 10, 1990, the plaintiff paid
36a
$44,865.53 to the clerk of the court. On the same date
plaintiff's counsel paid $3,309.70. These amounts are re-
flected in Judge McManus’ order that is attached to my
May 7, 1990, memorandum. The plaintiff and its counsel]
are now also jointly liable for sanctions in the amount of
$24,205.27 for their lack of preparedness at the prelimi-
nary pretrial conference held on August 22-23, 1989.
Counsel for plaintiff declared at the May 15, 1990, hearing
that he had no intention of paying any of the $24,205.27
because of the fraud practiced on the Tribe, and that he
is willing to go to jail instead.
The plaintiff was twice held in contempt in the consol-
idated portion of this case. On one occasion the plaintiff
was held in contempt for refusing to obey the court’s order
to case interfering with the defendants’ use and occupancy
of the non- trust lands within Blackbird Bend, and was
ordered to pay compensatory damages for willfully cutting
forty-six trees on the land. On another occasion the Tribe
was held in contempt and tribal members were incarcer-
ated due to their contemptuous conduct. The incarcerated
members were released from jail on May 1, 1987, and
were absolved from paying the daily $10,000.00 fine upon
its agreement to comply with court’s orders. To now hold
plaintiff's counsel in contempt would serve no other pur-
pose than to further delay this case.
Dismissal with prejudice is a harsh sanction which should
be imposed only after balancing the policy of giving the
plaintiff her day in court against the policies of preventing
undue delay, avoiding court congestion, and preserving re-
spect for court procedures.’’ Garrison v. International Pa-
per Co., 714 F.2d 757 (8th Cir. 1983).
In Welsch v. Automatic Poultry Feeder Co., 439 F.2d
95 (8th Cir. 1971), the appellants claimed that the district
court had improperly dismissed their case because their
actions had not been willfu. The Eighth Circuit held that
a willful failure to comply with a court order or failure
37a
to prosecute implies a conscious or intentional failure to
act, as opposed to accidental or involuntary noncompliance.
I cannot characterize the plaintiff's actions as accidental
or involuntary. They have been conscious and intentional.
The plaintiff’s failure to file an acceptable proposed pre-
trial order, which includes its failure to reveal adequately
the testimony of its expert witnesses, is evidence of a
systematic pattern of failure to comply with court rules
and court orders. Court proceedings have repeatedly been
delayed by the plaintiff’s failure to sufficiently comply with
discovery orders. Having balanced the consequences of de-
nying the plaintiff its day in court with the counterveiling
interests in preserving respect for this court and pre-
venting undue delay, I find no option but to dismiss the
plaintiff's case with prejudice.
As I mentioned previously, the plaintiff's December 5,
1989, motion contains a request for a hearing to answer
the charges made against it by the defendant. I find that
the plaintiff has already had an adequate opportunity to
do so by way of its motions and the May 15, 1990, hearing.
To have another hearing at this point would serve no
purpose. Therefore I will deny the plaintiff's request for
a further hearing.
3. The February 14, 1990, motion.
The plaintiff has asked that I review its February 14,
1990, motion. The record in the present (unconsolidated)
case does not show a filing by the plaintiff on or about
February 14, 1990. However the plaintiff did file a motion
on February 14, 1990, (Filing 897) in the consolidated case,
which asked for the recusa]l of Judge McManus. That mo-
tion has previously been ruled on and denied by Judge
McManus. (Filing 906).
4. The March 13, 1990, motion (Filing 472).
Finally, the plaintiff requested that I consider its March
13, 1990, motion. I have previously considered this motion
38a
and discussed it in my memorandum and order of May 7,
1990, (Filing 483). Having already done so, I see no need
to discuss it a second time. Counsel for the plaintiff cor-
rectly pointed out at the May 15, 1990, hearing that an
error had been made on page 9 of the May 7, 1990, mem-
orandum. The final paragraph of page 9 contains a sen-
tence which states, in part: ‘First, by virtue of date of
January 26, 1976, should be changed to April 15, 1976.
This was an inadvertent error and I apologize for any
confusion. My decision in the memorandum and order is
not affected by the change of date.
On May 14, 1990, the plaintiff filed a motion to be heard
respecting the memorandum and orders entered May 7,
1990, antecedent to disposition. This motion generally mir-
rors the arguments made by the plaintiff at the May 15,
1990, hearing; that is, that I should consider the December
5, 1989, motion prior to any decision to dismiss this mat-
ter. I have done so.
The plaintiff contends that I erred in finding, in the
May 7, 1990, order (Filing 483), that the plaintiff had failed
to make any good faith attempt to arrive at any undis-
puted facts. The plaintiff points out that, contrary to my
statements in the memorandum, plaintiff did agree at the
time of the pretrial conference that the Omaha Indian
Tribe is incorporated and that Iowa is a state in the Union.
The plaintiff may well have made such agreement at
the pretrial conference, but it did not choose to agree to
those statements in the proposed pretrial order. It is in
a pretrial order that the parties are expected to reflect
the fruits of a reasonable, good faith attempt to arrive at
uncontroverted facts. If the plaintiff made such an attempt
at the pretrial conference by an agreement to two tiny
facts, it was withdrawn by tendering the proposed pretrial
order shorn of the agreement.
Next, the plaintiff argues that the judicial integrity of
this court has again been violated because I constricted
39a
the period of time allowed to the plaintiff to consider the
May 7, 1990, memorandum and order, and forced a hear-
ing respecting those issues on May 15, 1990, all in an
attempt to render it impossible for the plaintiff to have a
full and fair hearing on that date. I note only that plairitiff’s
counsel along with defendants’ counsel, was consulted prior
to the setting of that date, and all counsel, including
plaintiff's counsel, were agreeable to the May 15, 1990,
date.
IT IS THEREFORE ORDERED that:
1. the plaintiff's motion for a hearing, filing 449, filed
on December 5, 1989, to address the defendants’
charges that plaintiff deliberately misled them is de-
nied;
2. the plaintiff's motion to be heard respecting the mem-
orandum and orders entered May 7, 1990, filing 486,
has been complied with and is therefor moot; and
3. the defendants motions to dismiss with prejudice, Fil-
ings 460, 462, 463, 465, 468, 469, and 470, are
granted.
Dated May 24 1990.
BY THE COURT
/s) Warren K. Urbom
United States District Court
40a
APPENDIX F
UNITED STATES COURT OF APPEALS,
EIGHTH CIRCUIT.
No. 90-2133.
OMAHA INDIAN TRIBE, TREATY OF 1854 WITH THE
UNITED STATES (10 Stat. 1043), Organized pursuant to
the Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 476) as
amended,
Appellant,
v.
TRACT I—BLACKBIRD BEND AREA: Agricultural and In-
dustrial Investment Company; American Telephone & Tel-
egraph Company; Edith Benjamin; Herbert Nelson
Benjamin; Maurice Louis Benjamin; James Brooks Benson;
Helen Bentley; George R. Boulden; Matilda Boulden; Vasco
Bouldeneo Cox; John K. Craford; M. George Craford; Ruth
Craford; Phyllis Dale; Gladys Durr; Lloyd Fletcher; Frank
Carlton Follett; Great Lakes Pipeline Company; Alma
Schmidt Henderson; Iowa Public Services Company; Har-
oid Jackson; Letha Jenkins; Rose Ann Kane; Bertha Kirk;
Harriet Kirk; Mary Ann Kiskadon; Charles E. Lakin; Flor-
ence Lakin; Albert J. Larson; John H. Lund; Ruth J. Lund;
Magnolia Pipeline Company; Ethel McCoy; Mid-American
Pipeline Company; Mid-Continent Eastern Pipeline Cor-
poration; Monona County Rural Electric Cooperative;
Northern Natural Gas Company; Arthur Orr; Robert Orr;
Otis Peterson; R.G.P. Incorporated, an lowa Corporation;
Anena Ruth; George C. Ruth; Richard A. Ruth; Jean M.
Ruth; Fred Sanders; Fred E. Sanders; Rosalie Sanders;
Socony Vacuum Oil Company; Darrell L. Sorenson; Harold
Sorenson; Harold M. Sorenson; Luea Sorenson; Fred Stan-
gel; State of Iowa, State of lowa Conservation Commis-
4la
sion; Edward L. Torticilli; Mary A. Torticilli; Regina Marie
Torticilli; Travelers Insurance Company; Ariel Virtue;
W.W. Virtue; Willaday Farms, Inc.; Ross O. Willey; Vin-
cent R. Willey; Williams Brothers Pipeline Company; Roy
Tibbals Wilson,
Appellees,
Tract II—Monona Bend Area: Agricultural & Industrial
Investment Company; Karen Anderson; Richard L. An-
derson; Eva Carlson; Harold Carlson; Mildred Orr Carter;
Hazel Clark; Kenneth Clark; Chris Christensen; Barbara
Dahl; Clara Grace Dahl; Gordon Dahl; Doris Dufrene; Har-
old B. Dufrene; Myrva Everett; R.J. Everett; Lloyd P.
Fender; Verna Pearl Fender; Gertrude Gibler; Alma
Schmidt Henderson; J.B. Hicks; Substitute Trustee for
Mildred C. Hicks; Maude B. Hudgel; Ramona Orr Huff;
Henry L. Jester; James Kent; Sue Kent; Carroll Koenig;
Lorraine Kutzler; Emma Johanna Olson; Alice Parker; Na-
dine Parker; Wallace G. Parker; L.S. Raines; Carol Ann
Reitan; Robert E. Reitan; Donald L.Rup; Lillian C. Rup;
Roy R. Rupp; Don E. Ruth; Joyce M. Ruth; Don E. &
Joyce M. Ruth (Commercial); Edna J. Sporder; Lillie Mae
Stevens; Roy T. Sorenson; Wilbur L. Stokely; Dan K.
Weaver,
Appellees,
Tract I1I—Omaha Mission Bend Area: Emily S. Blair;
Donna C. Ford; Frances Goodman; Ray L. Grosvenor; Iowa
Public Service Company; Iowa State Conservation Com-
mission; Hazel I. Jacobson; Joan S. Jacobson; William S.
Jacobson; Minnie Marble; Coy W. McFarland; Maude E.
McFarland; Ruby McFarland; Fred E. Nelson; Gladys E.
Nelson; Lloyd E. Nelson; Carolyn Ann Nelson; Larry L.
Nelson; Ernest L. Olson; Bernard M. Olson; Larry M.
Olson; Leland M. Olson; Harold Queen; John M. Ropes;
Clyde H. Rush; Glen Swan; Grace Swan; Ethel Swan; P.C.
Swan; Harry D. Taylor; Majayne Ropes Weber,
Appellees.
42a
Submitted Jan. 7, 1991.
Decided May 28, 1991.
Indian Tribe brought quiet title action. The United States
District Court for the Northern District of lowa, Edward
J. McManus and Warren K. Urbom, JJ., dismissed action
with prejudice, and Tribe appealed. The Court of Appeals
held that: (1) Court of Appeals’ earlier ruling on Tribe’s
fraud claim was law of case; (2) dismissal with prejudice
was proper; and (3) Tribe was liable for double costs of
appeal.
Affirmed.
William Veeder, Washington, D.C., for appellant.
Wiley Mayne, Sioux City, lowa, and Peter Peters, Coun-
cil Bluffs, Iowa, for appellees.
Before LAY, Chief Judge, and MAGILL and LOKEN,
Circuit Judges.
PER CURIAM.
The Omaha Indian Tribe (‘‘Tribe’’) appeals from the dis-
trict court’s' order, issued as a sanction pursuant to Fed-
eral Rules of Civil Procedure 16(f) and 41(b), granting the
defendants’ motions to dismiss with prejudice the Tribe’s
action to quiet title to lands located in Monona Bend,
Omaha Mission Bend, and Blackbird Bend outside the Bar-
rett éurvey. On appeal, the Tribe argues that it was denied
due process. We affirm the judgment of the district court.
‘The Honorable Warren K. Urbom, United States District Judge for
the District of Nebraska.
|
43a
I.
In 1854, the Tribe and the United States entered into
a treaty which reserved for the Tribe certain lands located
west of the ‘“‘centre of the main channel of said Missouri
river.’ Act of March 16, 1854, Art. 1, 10 Stat. 1043. The
treaty established the Missouri River as the eastern bound-
ary of the Tribe’s reservation. After 1854, the Missouri
River moved in such a way as to cause the boundary of
the reservation to move eastward to the Iowa high bank.
In 1975, the United States, as trustee for the Tribe, |
brought suit to quiet title to land lying adjacent to the
Missouri River in an area called Blackbird Bend in Monona
County, Iowa. The United States alleged that the land had
been part of the Tribe’s original reservation on the Ne-
braska side of the Missouri River before the river changed
course. The United States claimed approximately 2900
acres of land lying inside the Barrett Survey in Blackbird
Bend. The Tribe subsequently filed two additional lawsuits
to quiet title to land situated in Monona County. Specif-
ically, the Tribe claimed land in the Blackbird Bend Area,
the Monona Bend Area, and the Omaha Mission Bend
Area. The lands located inside the Barrett Survey Area
in Blackbird Bend were originally part of the Omaha In-
dian Reservation; however, the lands located in Monona
Bend, Omaha Mission Bend and Blackbird Bend outside
the Barrett Survey Area were not part of the Tribe’s
original reservation.
The three lawsuits were consolidated for trial in 1976.
The trial court later severed the Tribe’s claims to lands
located outside the Barrett Survey Area in the interests
of judicial convenience and economy. The action to quiet
title to lands located in Blackbird Bend inside the Barrett
Survey is referred to as the consolidated case; the uncon-
solidated case involves the Tribe’s claims to lands lying
outside the Barrett Survey. In 1979, the court stayed fur-
ther proceedings in the unconsolidated case pending the
44a
outcome in the consolidated case. Litigation in the con-
solidated case, hopefully, has come to rest.’
On June 15, 1987, the trial court reactivated the un-
consolidated case. This appeal concerns approximately 8000
acres of land situated in Monona Bend, Omaha Mission
Bend and Blackbird Bend outside the Barrett Survey Area.
The defendants are owners of land in Monona County,
Iowa. The United States is not a party in the present
action. The land involved in the immediate case was not
part of the original reservation. The Tribe’s claim, there-
fore, is an action at law for ejectment rather than an
equitable title proceeding. See Omaha Indian Tribe v. Jack-
son, 854 F.2d 1089, 1096 n. 6 (8th Cir.1988). The Tribe’s
general theory is that its reservation was enlarged when
the Missouri River moved away from the reservation and
towards the Iowa bank by erosion and accretion. The Tribe
claims, however, that the river then moved west back to-
wards Nebraska by avulsion, leaving reservation land on
the Iowa side of the river.
The facts and circumstances which lead up to the dis-
missal of the Tribe’s case with prejudice are extraordinary.
Counsel for the defendants residing in Monona Bend and
Omaha Mission Bend submitted interrogatories to the Tribe
requesting the names of their experts and the facts known
and opinions held by them in accordance with Rule 26(b)\4)
* United States v. Wilson, 433 F.Supp. 67 (N.D. Iowa 1977); Omaha
Indian Tribe v. Wilson, 575 F.2d 620 (8th Cir. 1978), vacated and
remanded, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979); Omaha
Indian Tribe, Treaty of 1854 with the United States v. Wilson, 614
F.2d 1153 (8th Cir.), cert. denied, 449 U.S. 825, 101 S.Ct. 87, 66
L.Ed.2d 28 (1980); United States v. Wilson, 523 F.Supp. 874 (N.D.lowa
1981); United States v. Wilson, 707 F.2d 304 (8th Cir. 1982), cert.
denied, 465 U.S. 1025, 104 S.Ct. 1281, 79 L.Ed.2d 684 (1984); United
States v. Wilson, 578 F.Supp. 1191 (N.D.lowa 1984), affd in part and
rev'd in part, Omaha Indian Tribe v. Jackson, 854 F.2d 1089 (8th Cir.
1988), cert denied, 490 U.S. 1090, 109 S.Ct. 2429, 104 L.Ed.2d 986
(1989), United States v. Wilson, 926 F.2d 725 (8th Cir. 1991)
45a
of the Federal Rules of Civil Procedure. When the Tribe
failed to respond, the defendants filed motions to compel
discovery. The defendants also served a request for pro-
duction of documents on the Tribe. On January 26, 1989,
United States Magistrate John A. Jarvey granted the
defendants’ motions to compel discovery and ordered the
Tribe to answer the interrogatories and comply with the
request for production of documents by August 1, 1989.
Magistrate Jarvey further ordered the Tribe to designate
its witnesses by April 1, 1989. The Tribe subsequently filed
a motion for reconsideration of the January 26, 1989 order
and requested the court to stay all proceedings. On June
6, 1989, after learning that the Tribe had failed to des-
ignate its experts, Magistrate Jarvey sanctioned the Tribe
by limiting it to the expert opinions given at the first trial
in the consolidated case.
The case was set for trial on November 6, 1989. On
August 18, 1989, Magistrate Jarvey ordered the parties
to submit a proposed final pretrial order to him by Sep-
tember 1, 1989, and scheduled a final pretrial conference
for September 8, 1989. The parties met in Sioux City,
Iowa on August 22 and 23, 1989, to prepare a final pretrial
order. On September 13, 1989, five days after the final
pretrial conference was held, Magistrate Jarvey ordered
the Tribe to submit a revised proposed final pretrial order
to him by September 25, 1989. Magistrate Jarvey stated
in his order:
“the court ... was unable to accomplish virtually any
of the objectives of a final pre-trial conference due to
[the Tribe’s] ... complete failure to provide an accept-
able proposed final pre-trial order.... Instead of pro-
viding one cohesive integrated document, counsel for. . .
[the Tribe] simply gathered the proposals of the parties
and stapled them together. The parties were even unable
to stipulate that the Tnba! Council is the governing body
for the ... [Tribe].”’
te
46a
Magistrate’s Order at 1-2 (Sept. 13, 1989). He then ordered
the parties to ‘‘make a good faith attempt to narrow the
issues to those truely in dispute.’’ Jd.
On September 20, 1989, the Tribe filed a motion to
reconsider the magistrate’s orders dated June 6 and Sep-
tember 13, 1989. On September 29, 1989, Judge Edward
J. McManus issued an order granting the Tribe’s motion
with respect to the designation of its experts. Although
Judge McManus agreed with Magistrate Jarvey that the
Tribe’s designation of witnesses and answers to interro-
gatories failed to ‘“‘provide ... any meaningful statement
of opinions and facts on which the experts are expected
to testify, and ... [to include] a summary of the grounds
for each opinion,”’ he concluded that ‘‘the defendants are
familiar enough with this litigation that they will not be
severely prejudiced if the Tribe’s experts are permitted to
testify.’’ District Court’s Order at 3 (Sept. 29, 1989). Judge
McManus also stated in his order that “‘[t]he Tribe’s dismal
history of noncompliance with the orders of this court is
well documented. The Tribe’s failure to submit the revised
proposed final pre-trial order on time is yet another ex-
ample of its noncompliance.” Jd. at 4. Judge McManus
then stated that the Tribe’s case would be dismissed with
prejudice uniess the Tribe delivered to the magistrate by
October 16, 1989 a revised proposed pretrial order in the
form required by the court.
Throughout the course of this litigation the Tribe has
continued to allege that the Department of Justice
attorneys participated in fraud and collusion in their rep-
resentation of the United States as trustee for the Tribe
by limiting the Tribe’s claims in the consolidated case to
lands inside the Barrett Survey. Counsel for the Tribe
continues to argue fraud notwithstanding this court’s pre-
vious holdings that the Tribe’s fraud argument is without
merit. Omaha Indian Tribe v. Jackson, 854 F.2d at 1092
n. 4; In re Omaha Indian Tribe, No. 86-1717 (8th Cir.
47a
July 18, 1986) (order denying petition for writ of man-
damus).
After the parties met in Sioux City, Iowa to prepare a
final pretrial order, the defendants filed motions for sanc-
tions. On October 5, 1989, Judge McManus granted the
defendants’ motions for sanctions and ordered the Tribe
to pay ail the reasonable fees and expenses related to the
defendants’ attendants at both the preliminary conference
on August 22 and 23, 1989, and the hearing on September
8, 1989. Judge McManus stated that ‘‘the Tribe was un-
prepared, combative, and failed to endeavor in good faith
to satisfy the purpose of ... [the preliminary] conference
or the final pretrial conference held ... on September 8,
1989.”’ District Court’s Order at 3 (Oct. 5, 1989). To dem-
onstrate the Tribe’s iack of good faith at the pretrial con-
ference, Judge McManus noted that counsel for the Tribe,
William Veeder, responded to a defendant’s inquiry con-
cerning the Tribe’s failure to bring a proposed statement
of undisputed facts to the conference as follows: ‘I never
agreed on anything in 13 years. We’ll just go ahead that
way.” Id. Judge McManus concluded that ‘‘[t]he Tribe’s
lack of preparation and failure to follow the court’s stand-
ard form for pretrial orders resulted in the Tribe’s sub-
mission of a wholly unacceptable proposed final pretrial
order, and a substantially futile pretrial conference on Sep-
tember 8, 1989.” Id. Judge McManus also ordered the
Tribe to refrain from referring to the fraud argument.
Pursuant to Judge McManus’ order dated September 29,
1989, the Tribe delivered its proposed pretrial order to
the magistrate and filed a motion to file its pretrial order
on October 16, 1989.
Late in the discovery process, the defendants deposed
the Tribe’s expert witnesses with respect to the lands lo-
cated in Monona Bend and Omaha Mission Bend and
learned that the Tribe had failed to disclose certain avul-
sions in its answers to interrogatories and its proposed
pretrial order. The defendants then moved to dismiss the
48a
plaintiff's case. On December 5, 1989, the Tribe filed a
motion for a hearing to address the defendants’ charges
that the Tribe deliberately misled them.
On January 12, 1990, Judge McManus recused himself
from the case on the grounds that physical circumstances
and other commitments prevented him from undertaking
an extended trial in Sioux City, Iowa. Judge Warren K.
Urbom from the District of Nebraska was subsequently
appointed to the case.
On January 16, 1990, Magistrate Jarvey denied tne
Tribe’s motion to file the final pretrial order because it
did not “comply with previous [court] orders directing its
preparation’”’ and did not “‘reflect the status of this liti-
gation.” Magistrate’s Order at 1- 2 (Jan. 16, 1990). After
Judge Urbom reviewed the record de novo, he concluded
in his memorandum and order dated May 7, 1990, that
the Tribe failed to file an adequate proposed pretrial order.
He specifically found that the Tribe had failed to make a
good faith effort to arrive at any undisputed facts; that
the Tribe’s statement of legal issues was inadequate be-
cause it raised the frivolous fraud issue and improperly
alleged that the Tribe was being forced to relitigate issues
previously decided in the consolidated case; and that the
Tribe had failed to disclose six alleged avulsions. Judge
Urbom concluded that the Tribe should be sanctioned for
failing to file an adequate proposed pretrial order and
scheduled a hearing on the issue of sanctions for May 15,
1990.
On May 29, 1990, two weeks after the hearing was held
on the sanctions issue, Judge Urbom granted the
defendants’ motions to dismiss the Tribe’s suit with prej-
udice. Judge Urbom found the Tribe’s noncompliance with
court orders and rules intentional and conscious. He stated:
The plaintiff's failure to file an acceptable proposed pre-
trial order, which includes its failure to reveal ade-
quately the testimony of its expert witnesses, is evidence
49a
of a systematic pattern of failure to comply with court
rules and court orders. Court proceedings have repeat-
edly been delayed by the plaintiff’s failure to sufficiently
comply with discovery orders. Having balanced the con-
sequences of denying the plaintiff its day in court with
the countervailing interests in preserving respect for
this court and preventing undue delay, I find no option
but to dismiss the plaintiff's case with prejudice.
District Court’s Memorandum and Order at x (May 29,
1990). Judge Urbom also denied the Tribe’s motion for a
hearing concerning the defendants’ charges that the Tribe
deliberately misled them. Judge Urbom reasoned that the
Tribe already had an adequate opportunity to address those
charges by motion and at the hearing on the issue of
sanctions.
Judge Urbom also considered other possible sanctions
including holding the Tribe’s counsel, William Veeder, in
contempt, assessing monetary sanctions against the Tribe,
disqualifying the Tribe’s counsel from further participation
in the case, requiring the Tribe’s counsel to associate with
local counsel, limiting the Tribe’s counsel to the expert
testimony that was contained in the proposed pretrial or-
der, and limiting the Tribe’s counsel to the expert testi-
mony given in the consolidated case. He concluded,
however, that no sanction other than dismissal could rem-
edy the Tribe’s record of “past and intended future non-
compliance’”’ with court orders. Jd. at ii.
On June 8, 1990, the Tribe filed a motion for reconsi-
deration of the district court’s order of dismissal. The
Tribe’s motion was denied on June 14, 1990. The Tribe
filed a notice of appeal on July 11, 1990.3
* The defendants argue that the Tribe’s appeal should be summarily
dismissed because the Tribe failed to file its notice of appeal within
thirty days after the date of the entry of judgment (May 29, 1990), as
required by Rule 4(a) of the Federal Rules of Civil Procedure. They
50a
Il.
A. Law of the Case
In its brief on appeal, the Tribe argues that the De-
partment of Justice attorneys who represented the United
States as trustee for the Tribe participated in fraud by
limiting the Tribe’s claims in the earlier action to land
inside the Barrett Survey in Blackbird Bend. The Tribe
also contends that Judge McManus “fully supported” and
“effectuated” the fraud practiced on the Tribe by “forcing
upon ... [the] Tribe the rejected representation” of the
Department of Justice attorneys. Appellant’s Brief at iv,
8. The Tribe further argues that the Tribe was denied ‘‘its
Constitutional right of due process to initiate its own law
suit and to prosecute that law suit” as a result of Judge
McManus’s alleged judicial misconduct. Jd. at v. The Tribe
also alleges that Judge Urbom became a “participant in
the judicial cover-up of the fraud’ by refusing to address
the charges against Judge McManus. Id. at 24-25. The
Tribe contends that Judge Urbom ‘‘adopt(ed] Judge
McManus|’] violations of judicial integrity and embrac[ed]
the false and perverted charges made by the
(defendants] and Judge McManus against ... [the] Tribe.”
Id. at 25. The Tribe further alleges that Judge Urbom’s
“bias and prejudice against ... [the] Tribe” surfaced in
his May 29, 1990 order. Jd. at 34. The Tribe concludes
that “{tJhe bias, prejudice, and aggressive partiality for
claim that the Federal Rules of Civil Procedure do not recognize a
motion for reconsideration. We disagree.
Courts generally view any motion which seeks a substantive change
in the judgment as a Rule 5%e) motion if it is made within ten days
of the entry of judgment. 6A J. Moore, Moore’s Federal practice 4
59.12{1] (2d ed. 1989). A motion to reconsider has been construed as
a Rule 5%e) motion. See Wild v. St. Paul Cos., Inc., 612 F.2d 341 (8th
Cir. 1979); Seshachalam v. Creighton Univ. School of Medicine, 545 F.2d
1147 (8th Cir. 1976), cert. denied, 433 U.S. 909, 97 S.Ct. 2974, 53
L.Ed.2d 1093 (1977). The Tribe’s motion to reconsider is the functional
equivalent of a motion to alter or amend the judgment.
5la
the ... [defendants] by Judge Urbom and Judge McManus
in accepting .. . [the defendants’] charges against . . . [the]
Tribe ... while completely denying ... [the] Tribe the
right to be heard and [the right] to refute those charges
.. Is the very essence of denia! of Due Process.” Ap-
pellant’s Reply Brief at 20.
In Omaha Indian Tribe v. Jackson, 854 F.2d at 1092
n. 4, we held that the Tribe’s claim that the Department
of Justice attorneys participated in fraud was without
merit. Moreover, when the Tribe petitioned this court for
a writ of mandamus alleging fraud, we dismissed the
Tribe’s petition as “frivolous and otally without merit’’
and sanctioned the Tribe’s counsel by awarding the United
States costs and attorney’s fees. In re Omaha Indian Tribe,
No. 86-1717 (8th Cir. July 18, 1986) (order denying petition
for writ of mandamus). This court has ruled on the Tribe’s
fraud claim and our prior decisions now stand as the law
of the case. See Little Earth of the United Tribes, Inc. v.
United States Dep’t of Hous. & Urban Dev., 807 F.2d 1433,
1440-41 (8th Cir.1986) (finding law of the case doctrine
prevents relitigation of settled issues).*
B. Dismissal with Prejudice
The Tribe argues that Judge Urbom abused his discre-
tion by dismissing the case with prejudice. We disagree.
The district court has authority to dismiss an action with
prejudice for failure to comply with court orders or the
‘The Tribe also urges this court to set aside the district court's post-
judgment orders requiring the United States to satisfy its liability for
improvements out of an escrow account which contains crop proceeds
from land situated within the Barrett Survey. Because the district
court's post-judgment orders simply conform to our holding in Jackson,
854 F.2d at 1094-95, we find the Tribe’s argument meritless. We also
find the Tribe has no legal interest in the division of the court registry
fund between the United States and the private defendants. This court
specifically held in Jackson that the government's liability to reimburse
the private defendants for the improvements on the land should be
satisfied out of escrowed trust funds in the court registry fund. /d.
52a
Federal Rules of Civil Procedure. Fed.R.Civ.P. 41(b). Rules
16(f) and 37(b) also permit dismissal as a sanction for
failure to obey the court’s orders. Dismissal with prejudice
should be used sparingly because it is a drastic sanction.
Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95, 96
(8th Cir.1971). We review a district court’s decision to
dismiss under the abuse of discretion standard. Garrison
v. International Paper Co, 714 F.2d 757, 760 (8th Cir.1983).
An action should be dismissed with prejudice ‘‘only after
balancing the policy of giving the plaintiff her day in court
against [the] policies of preventing undue delay, avoiding
court congestion, and preserving respect for court proce-
dures.” Id.; see also Moore v. St. Louis Music Supply Co.,
Inc., 539 F.2d 1191, 1193 (8th Cir.1976); Navarro v. Chief
of Police, Des Moines, Iowa, 523 F.2d 214, 217 (8th
Cir.1975). “This balancing process ‘focuses in the main
upon the degree of egregious conduct which prompted the
order of dismissal and to a lesser extent upon the adverse
impact of such conduct upon both the defendant and the
administration of justice in the District court.’ ’’ Brown v.
Frey, 806 F.2d 801, 804 (8th Cir.1986) (quoting Moore,
539 F.2d at 1193). The reviewing court should also con-
sider whether the party whose action was dismissed will-
fully refused to comply with court orders. “Willful as used
in the context of a failure to comply with a court order
. implies a conscious or intentional failure to act, as
distinguished from accidental or involuntary noncompli-
ance.”’ Welsh, 439 F.2d at 97.
After reviewing the record as a whole, we conclude that
the district court did not abuse its discretion in granting
the defendants’ motions to dismiss with prejudice the
Tribe’s action to quiet title. The record supports the dis-
trict court’s finding that the Tribe’s failure to comply with
the court’s orders was intentional or willful, not inad-
53a
vertent or accidental. The Tribe’s conduct shows a pattern
of noncompliance with court orders.* On June 6, 1989, the
magistrate assessed sanctions against the Tribe for failing
to comply with the court’s January 26, 1989 order com-
pelling discovery. Moreover, on September 29, 1989, the
court warned the Tribe that its action would be dismissed
unless the Tribe filed an adequate proposed pretrial order
by October 16, 1989. The court dismissed the Tribe’s quiet
title action only after the Tribe failed to heed its warning.
See Mangan v. Weinberger, 848 F.2d 909, 911 (8th Cir.1988)
(finding dismissal with prejudice was appropriate when
plaintiff failed to comply with an order to amend his plead-
ings), cert. denied, 488 U.S. 1013, 109 S.Ct. 802, 102
L.Ed.2d 793 (1989); Henderson v. Duncan, 779 F.2d 1421,
1425 (9th Cir.1986) (holding court properly dismissed the
plaintiff's case after plaintiff's counsel failed to heed the
court’s warning that failure to submit an acceptable pre-
trial order would result in dismissal); Burges v. Sissel, 745
F.2d 526, 528 (8th Cir.1984) (finding court properly dis-
missed the plaintiff’s claims after he disobeyed three court
orders requiring him to amend his pretrial statement).
The district court properly found the Tribe’s proposed
pretrial order inadequate. First, the Tribe refused to stip-
ulate to any undisputed facts in the proposed pretrial or-
der. The Tribe’s proposed pretrial order merely contained
a list of separate submissions. To show the extent of the
Tribe’s recalcitrance, Judge Urbom noted that the Tribe
would not even agree that the Tribal Council governs the
Omaha Indian Tribe, or that the state of Iowa was ad-
mitted to the Union by an act of Congress on December
* Although not a factor here; the same pattern of behavior occurred
in the consolidated case. The record in the consolidated case shows
that the Tribe was held in contempt on two occasions for violating the
district court’s orders granting possession of certain lands to the
defendants. State of Iowa’s App. at 9-14. Moreover, the court dismissed
the Tribe’s damage claim after the Tribe refused to comply with the
court's orders compelling discovery. Id. at 7-8.
PLUS i is
54a
28, 1846.° The Tribe’s behavior clearly violated Magistrate
Jarvey’s order that the parties ‘‘make a good faith attempt
to narrow the issues to those truly in dispute.” Magis-
trate’s Order at 1-2 (Sept. 13, 1989).
Second, the Tribe’s statement of legal issues was in-
adequate because it contained the fraud allegations. As
discussed previously, this court had ruled that the fraud
claim was without merit. Moreover, the district court’ s
order dated October 5, 1989 specifically prohibited the
Tribe from referring to the fraud claim.
Finally, the Tribe failed to disclose in its proposed pre-
trial order or its answers to interrogatories at least six
avulsions in Omaha Mission Bend and Monona Bend. The
defendants first learned of these avulsions when they de-
posed the Tribe’s expert witnesses late in the discovery
process. The Tribe’s avulsion theories were critical to this
quiet title proceeding. To prevail against the defendant
landowners, the Tribe had to show that the disputed lands
separated from the Omaha Indian Reservation and moved
to the east side of the Missouri River when the river
shifted by avulsion. In essence, the Tribe contends that
the boundary of the reservation gradually and naturally
expanded to include lands in Monona Bend, Omaha Mission
Bend, and Blackbird Bend outside the Barrett Survey when
the Missouri River moved back toward the Iowa hank by
accretion’ The Tribe further argues that the disputed lands
* Counsel for the Tribe, William Veeder, later admitted at the hearing
on the issue of sanctions that these facts were uncontroverted. Agri-
cultural Industrial Investment Company’s App. at 75-76.
7 An accretion is defined as ‘‘an addition to land coterminous with
the water, which is formed so slowly that its progress cannot be per-
ceived.”’ Jefferis v. East Omaha Land Co., 134 U.S. 178, 193, 10 S.Ct.
518, 522, 33 L.Ed. 872 (1890). ‘‘[WJhere running streams are the bound-
aries between States, . . . when the bed and channel are changed by
the natural and gradual processes ...{of] erosion and accretion, the
boundary follows the varying course of the stream.” Arkansas v. Ten-
nessee, 246 U.S. 158, 173, 38 S.Ct. 301, 304, 62 L.Ed. 638 (1918).
55a
ended up on the Iowa side of the Missouri River when
the river moved back toward Nebraska by avulsion.* The
Tribe contends that it still owns the lands which accreted
to the reservation even though they were later cutoff from
the reservation by avulsion.’
The record also suggests that the Tribe intentionally
pursued a pattern of delaying tactics. The Tribe filed nu-
merous motions for an extension of time and for recon-
sideration or stay after the unconsolidated case was
reactivated. In Garrison, 714 F.2d at 760, this court stated
that dismissal with prejudice may be warranted if the
plaintiff exhibits egregious conduct by engaging in a pat-
tern of intentional delay.
Although the focus of this review is primarily on the
egregiousness of the Tribe’s misconduct, we must also con-
sider the hardship to the defendants in determining
whether dismissal with prejudice was proper. See Brown,
806 F.2d at 804. After reviewing the record, we find that
the defendants would be unduly prejudiced if the Tribe
was allowed to proceed with its quiet title action. As a
* An avulsion occurs when there is a
sudden change of the banks of a stream such as occurs when a
river forms a new course by going through a bend, the sudden
abandonment by a stream of its old channel and the creation of a
new one, or a sudden washing from one of its banks of a consid-
erable quantity of land and its deposit on the opposite bank.
II] American Law of Property § 15.26, at 855-56 (1952) (footnotes
omitted).
*It is a well-established proposition that
if the stream from any cause, natural or artificial, suddenly leaves
its old bed and forms a new one, by the process known as an
avulsion, the resulting change of channel works no change of bound-
ary, which remains in the middle of the old channel, although no
water may be flowing in it, and irrespective of subsequent changes
in the new channel.
Arkansas, 246 U.S. at 173, 38 S.Ct. at 304.
56a
result of the Tribe’s refusal to comply with court orders,
the defendants have had to pay excessive expenses and
fees. Moreover, the defendants’ titles to their property
have been under a cloud since the Tribe filed its claim in
1975.
The Tribe also argues that Judge Urbom abused his
discretion by dismissing the case with prejudice without
allowing the Tribe the opportunity to respond to the
defendants’ charges that the Tribe misled them or to chal-
lenge the defendants’ motions to dismiss. We find the
Tribe’s arguments lack merit. Judge Urbom denied the
Tribe’s motions for a hearing on these issues only after
he held a hearing on the issue of sanctions. At the hearing
on the issue of sanctions, the Tribe had an opportunity to
address the defendants’ charges that the Tribe intention-
ally concealed avulsions and to discuss possible sanctions
short of dismissal.
C. Sanctions
The defendants argue t!.at this court should impose just
damages and costs against the Tribe for filing a frivolous
appeal pursuant to Rule 38 of the Federal Rules of Ap-
pellate Procedure. They contend that counsel for the Tribe
wrongfully attacked the integrity of the court and its of-
ficers. They also argue that the Tribe’s appeal improperly
focused on the fraud issue.
We find the Tribe’s fraud argument frivolous. Many of
the Tribe’s disrespectful comments about Judge McManus
and Judge Urbom relate to the meritless fraud argument.
On this basis alone, we assess double the costs of this
appeal against the Tribe. See Anselmo v. Manufacturers
Life Ins. Co., 771 F.2d 417, 421 (8th Cir. 1985) (imposing
sanctions for filing a frivolous appeal). We do not find,
however, the appeal of the dismissal on the merits friv-
olous. This court, as did Judge Urbom, has agonized over
the dismissal with prejudice of a party’s claim when the
primary fault of the dismissal can be traced to the recal-
57a
citrance and defiance of its counsel, William Veeder. Yet
as the district couit pointed out, for new counsel to at-
tempt to master the vast amount of prior pleadings and
discovery would indefinitely delay further progress in the
case. Mr. Veeder, for whatever strategic purpose, has from
the beginning of this overall litigation chosen to make the
government, the trial and appellate judges, and the
defendants, his targeted enemies. In the Tribe’s brief, Mr.
Veeder continues to exercise scurrilous disrespect for the
judges involved in this case. He stands obsessed with the
charges of fraud against the government and the com-
plicity in such fraud by Judges McManus and Urbom. He
maintains this charge notwithstanding this court’s prior
dismissal of such a claim, and he continues to inject this
claim into the overall merits of the ejectment action. Mr.
Veeder through his continued contumacious refusal to com-
ply with the district court orders has done a great dis-
service to his client in important litigation. It is unfortunate
in a case such as this that the client must live or die by
the conduct of its counsel. In Link v. Wabash R.R., 370
U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the Supreme
Court upheld the dismissal of an action on the grounds
that the attorney failed to prosecute a claim. The Court
stated:
There is certainly no merit to the contention that
dismissal of petitioner’s claim because of his counsel’s
unexcused conduct imposes an unjust penalty on the
client. Petitioner voluntarily chose this attorney as his
representative in the action, and he cannot now avoid
the consequences of the acts or omissions of this freely
selected agent. Any other notion would be wholly in-
consistent with our system of representative litigation,
in which each party is deemed bound by the acts of his
lawyer-agent and is considered to have “notice of all
facts, notice of which can be charged upon the attorney.”’
Id. at 633-34, 82 S.Ct. at 1390 (citations omitted).
58a
Once again, we do not review the dismissal de novo.
Although the remedy is indeed harsh and prejudicial to
the client, we find that the trial court exercised its judg-
ment of discretion within the confines of legal principles.
Under the circumstances, we must hold Judge Urbom did
not abuse his discretion in dismissing the Tribe’s action.
III.
Given the extraordinary facts in this case, we find the
district court did not abuse its discretion by granting the
defendants’ motions to dismiss with prejudice the Tribe’s
action to quiet title to lands located in Monona Bend,
Omaha Mission Bend, and Blackbird Bend outside the Bar-
rett Survey. We also assess double the costs of this appeal
against the Tribe for raising the frivolous fraud issue.
Accordingly, the judgment of the district court is affirmed.
59a
APPENDIX G
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 90-2133NI
Omaha Indian Tribe,
Appellant,
VS.
Tract I - Blackbird Bend Area, et al.
Appellees.
Order Denying Petition for Rehearing
With Suggestion for Rehearing En Banc
Appellant’s petition for rehearing with suggestion for
rehearing en banc has been considered by the court and
is denied by reason of a lack of a majority of the active
judges voting to rehear the case en banc.
Rehearing by the panel is also denied.
July 31, 1991
Order Entered at the Direction of the Court:
/s/ Michael E. Gaus
Clerk, U.S. Court of Appeals, Eighth Circuit
60a
APPENDIX H
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 90-2133NI
Omaha Indian Tribe, Treaty of 1854 with the United
States, et al.
VS.
Tract I-Blackbird Bend Area, et al.
Appellees.
Appeal from the United States District Court
for the Northern District of Iowa
Appellant’s untimely motion for stay of mandate is
granted. The mandate of this court issued on August 8,
1991, is hereby recalled. The clerk of the United States
District Court is directed to return the recalled mandate.
The issuance of mandate in this case shall be stayed to
and including September 21, 1991. If within that time
there is filed with the clerk of this court a certificate of
the clerk of the Supreme Court that a petition for writ
of certiorari has been filed, this stay shall continue until
fina! disposition of the case by that court.
August 21, 1991
Order Entered at the Direction of the Court:
/s/ Michael E. Gaus
Clerk, U.S. Court of Appeals, Eighth Circuit
6la
APPENDIX I
Syllabus
WILSON ET AL. Vv. OMAHA INDIAN TRIBE ET AL.
CERT!ORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT
NO. 78-160. Argued March 21, 1970—Decided June 20,
1979*
Pursuant to an 1854 treaty, the reservation of the Omaha
Indian Tribe (Tribe) was established in the Terntory of
Nebraska on the west bank of the Missoun River, with the
eastern boundary being fixed as the center of the river's main
channel. In 1807, a General Land Office survey established
that certain land was included in the reservation but since
then the river has changed course several times, leaving most
of the survey area on the lowa side of the mver, separated
from the rest of the reservation. Residents of lowa ultimately
settled on and improved this land, and these non-Indian
owners and their successors in title occupied the land for many
years prior to April 2, 1975, when they were dispossessed by
the Tribe, with the assistance of the Bureau of Indian Affairs.
Three federal actions consolidated in Distnct Court, were
instituted by respondents, the Tmbe and the United States as
trustee of the reservation lands, against petitioners, including
the State of lowa and several individuals. Both sides sought
to quiet title in their names, respondents arguing that the
river's movement had been avulsive and thus did not affect
the reservation's boundary, whereas petitioners argued that
the disputed land had been formed by gradual accretion and
belonged to the lowa mparman owners. The Distnct Court
held that state rather than federal law should be the basis of
decision; that 25 U. S. C. § 194—which provides that “[i}n
all trials about the right of property in which an Indian may
be a party on one side, and a white person the other, the
burden of proof shall rest upon the white person, whenever
* Together with No. 78-161, Jowa et al. v. Omaha Indian Tribe et ail.
also On certioran to the same coun.
62a
the Indian shall make out a presumption of title in himself
from the fact of previous possession or ownership” —was not
applicable because the Tribe could not make out a prima
facie case that it possessed the disputed land in the past
without proving its case on the merits; and that under Ne-
braska law, the changes in the mver had been accretive and
thus the petitioners were the owners of the disputed area.
The Court of Appeals reversed, ruling that federal rather than
State law was applicable; that the Tnbe had made a sufficient
showing to invoke § 194; and that applying the federal
common law of accretion and avulsion to the evidence, the
evidence was in equipoise and thus, under § 194, judgment
must be entered for the Tnbe.
Held:
1. The Court of Appeals was partially correct in
ruling that § 194 is applicable here: by its terms, § 194
applies to the private petitioners but not to petitioner
State of lowa. In view of the history of § 194 and its
purpose of protecting Indians from claims made by the
non-Indian squatters on their lands, it applies even when
an Indian tribe is the litigant rather than one or more
individual Indians. But, while Congress was aware that
§ 194 would be interpreted to cover artificial entities
such as corporations as well as individuals, there is
nothing to indicate that Congress intended the word
“white person” to include any of the States of the Union.
Here, there seems to be no question that the disputed
~land was once riparian land lying on the west bank of
the Missouri River and was long occupied by the Tnbe
as part of the reservation set apart for it in consequence
of he 1854 treaty, and this was enough to bring § 194
into play. In view of the purpose of the statute and its
use of the term “presumption” which the “white man”
must overcome, § 194 contemplates the non-Indian’s
shouldering the burden of persuasion as well as the
burden of producing evidence once the tribe has made
Out its prima facie case of prior title or possession. Pp.
664-669.
63a
2. The Court of Appeals properly concluded that
federal law governs the substantive aspects of the dispute,
but it erred in arriving at a federal standard, independent
of state law, to determine whether there had been an
avulsion or an accretion. Pp. 660-679.
(a) The general rule that, absent an overnding fed-
eral interest, the laws of the several States determine the
ownership of the banks and shores of waterways, Oregon
ex rel. State Land Board v. Corvallis Sand & Gravel Co.,
429 U.S. 363, does not oust federal law in this litigation.
Here, the United States has never yielded title or termi-
nated its interest in the property, and in these circum-
stances, the Indians’ right to the property depends on
federal law, “wholly apart from the application of state
law principles which normally and separately protect a
valid right of possession.” Oneida Indian Nation v.
County of Oneida, 414 U.S. 661, 677. Pp. 660-671.
(b) However, state law should be borrowed as the
federal rule of decision here. There is no imperative
need to develop a general body of federal common law
to decide cases such as this, where an interstate boundary
is Not in dispute (the location of the boundary between
lowa and Nebraska having been settled by Compact in
1943). Furthermore, given equitable application of state
law, there is little likelihood of injury to federal trust
responsibilities or to tribal possessory interests. And this
is also an area in which the States have substantial
interest in having their own law resolve controversies
such as these, there is considerable merit in not having
the reasonable expectations, under state real property
law, of private landowners upset by the vagaries of being
located adjacent to or across from Indian reservations or
other property in which the United States has a substan-
tial interest. Cf. Board of Comm'rs v. United States, 308
U.S. 343, Arkansas v. Tennessee, 246 U.S. 158. Pp. 671-
676.
(c) Under the construction of the 1943 Compact in
Nebraska v. lowa, 400 U.S. 117, Nebraska law should be
applied in determining whether the changes in the river
64a
that moved the disputed land from Nebraska to lowa
were avulsive or accretive. Pp. 676-678.
575 F.2d 620, vacated and remanded.
Wuirte. J., delivered the opinion of the Court, in which
all other Members joined, except PoweLt, J.. who took no
part in the consideration or decision of the cases. BLACKMUN,
J. filed a concurring opinion, in which BurGer, C.J., joined,
post, p. 679.
Edson Smith argued the cause for petitioners in No. 78-
i160. With him on the briefs were Robert H. Berkshire,
Thomas R. Burke, Lyman L. Larsen, Francis M. Gregory, Jr.,
and Maurice B. Nieland Bennett Cullison, Jr., argued the
cause for petitioners in No. 78-161. With him on the bnef
were Richard C. Turner, Attorney General of lowa, and James
C. Davis, Assistant Attorney General.
William H. Veeder argued the cause and Sled a bref for
respondent Omaha Indian Tribe in both cases. Sara Sun
Beale argued the cause for the United States in both cases.
65a
With her on the brief were Solicitor General McCree, Assistant
Attorney General Moorman, Deputy Solicitor General Barnett,
Robert L. Klarquist, and Edward J. Shawaker.t
* Edgar B. Washburn filed a brief for Title Insurance and Trust Co.
et al, as amiei ruriae urging reversal in both cases
A brief of amici curine urging reversal in No. 78-161 was filed for their
respective States by Theodore L Sendak. Attorney Genera! of Indiana,
Jane Gootee, Deputy Attorney General, and Donald Bogard William J
Harley, Attorney General of Alabama, Aerum Gross. Attorney General of
Alaska, John A LaSota, Jr. Acting Attorney General of Arizona, William
J Clinton, Attorney General of Arkansas, Cari R Ajello, Attorney Genera!
of Connecticut, Richard R. Wier, Jr. Attorney Genera! of Delaware, Robert
L. Shevin. Attorney General of Flonda, Rona/d Y. Amemiya, Attorney
General of Hawai; Wayne L Aidwell, Attorney General of Idaho, H illiam
J Scott, Attorney General of Illinois, Curt T Schneider, Attorney General
of Kansas, Robert F Stephens. Attorney General of Kentucky, Wi/liam J
Guste. Jr. Attorney General of Louisiana, Joseph E. Brennan. Attorney
General of Maine, Francis B Burch. Attorney General of Maryland, Francis
A Bellotti, Attorney General of Massachusett:. Frank J Aetty. Attorney
General of Michigan, AF Summer, Attorney General of Mississippi, John
D Ashcroft, Attorney General of Missouri, Pau/ L Douglas. Attorney
General of Nebraska. Rober: List Attorney Genera! of Nevada, Thomas
D Roth. Attorney General of New Hampshire. Toney Anaya Attorney
General of New Mexico, Louis J Lefkowitz. Attorney General of New
York, Rufus L Edmisten. Attorney General of North Carolina, Allen L
Olson. Attorney General of North Dakota, William J Brown, Attorney
General Ohio: James A Redden. Attorney Genera! of Oregon: Daniel
R McLeod. Attorney General of South Carolina. William Janklow, Attor-
ney General of South Dakota, William Af Leech.Jr. Attorney General
of Tennessee. Robcri B /llansen. Attorney General of Utah, Af. Jerome
Diamond. Attorney Genera! of Vermont; J Afarshali Coleman. Attorney
General of Virginia, Slade Gorton. Attorney General of Washington:
Chauncey 11. Browning Jr, Attorney General of West Virginia, Bronson C
La Follette, Attorney General of- Wisconsin, John J. Rooney, Acting
Attorney General. and Jack D Palma //, Senior Assistant Attorney General
of Wyoming
Robert S Peleyger. Richard B Collins. and Arthur Lazarus, Jr., filed a
brief for the Native American Rights Fund et al. as amici curiac urging
afhrmance in both cases
John C Christie.Jr.. Charles T Martin, and Stephen J Landers filed
a brief for the Amencan Land Title Assn. as a-nicus curiac in both cases.
A brief of amici curiac was filed in No. 7$-161 for their respective
States by Evelle J. Younger. Attorney Genera! , N. Gregory Taylor,.Assistant
Attorney General, and John Briscoe and Bruce S. Flushman, Deputy
Attorneys General. of California, John L Wil, Atiorney General of Texas;
Alike Greedy. Attorney General of Montana; Warren Spannaus, Attorney
General of Minnesota: Gerald Gornish, Attorney General of Pennsylvania;
and J.D MacFariane. Attorney General, and David HW’ Robbins, Deputy
Attorney General. of Colorado
66a
Mr. Justice WHITE delivered the opinion of the Court.
Al issue here 1s the ownership of a tract of land on the
east bank of the Missouri River in lowa. Respondent Omaha
Indian Tribe, supported by the United States as trustee of
the Tribe’s reservation lands,’ claims the tract as part of
reservation lands created for it under an 1854 treaty. Petition-
ers, including the State of lowa and several individuals, argue
that past movements of the Missouri River washed away part
of the reservation and the soil accreted to the lowa side of
the river, vesting title in them as riparian landowners.’
‘Heckman U'nited States, 224 U.S. 413 (1912). the Court explained
the source and nature of this trust relationship. In the exercise of its
plenary authority over Indian affairs, Congress has the power to place
restrictions on the alienation of Indian lands. Where it does so, 1t continues
guardianship over Indian lands and “(djuing the continuance of this
guardianship. the nght and duty of the Nation to enforce by all appropriate
means the restnctions designed for the security of the Indians cannot be
gainsaid... A transfer of the [Indian land] 1s not simply a violation of the
proprietary rights of the Indian. It violates the governmental nghts of the
Unned States” Jd. at 437-438. Accordingly. the United States is entitled
to gO into coun as trustee to enforce Indian land nghts. “It [1s] not essential
that 1 should have a pecuniary interest in the controversy.” /d at 430.
See also Aforrison v Work. 266 U.S.481, 485 (1925), Choore v. Trapp, 224
U.S. 665, 678 (1912), F. Cohen, Handbook of Federal Indian Law 91-96
(1942).
>The State of lowa claims title to certain lands deeded to it by quit
claim and to the bed of the Missoun between the thalweg (see n.3, infra)
and the ordinary high-water mark, any islands formed in that portion of
the mver, and any abandoned channels. The latter claims are based upon
the equal-footing doctrine, see Pollard's Lessee » Hogan, 3 How. 212
(1845), and the 1943 Boundary Compact between lowa and Nebraska see
n. 6, infra.
67a
Two principal issues are presented. First, we are faced
with novel questions regarding the interpretation and scope
of Rev. Stat. § 2126, as set forth in 25 U.S.C. § 104, a 145-
year-old, but seldom used, statute that provides:
“In all trials about the rmght of property in which an
Indian may be a party on one side, and a white person
on the other, the burden of proof shall rest upon the
white person, whenever the Indian shall make out a
presumption of title in himself from the fact of previous
possession or ownership.”
Second, we must decide whether federal or state law deter-
mines whether the cnitical changes in the course of the
Missouri River in this case were accretive or avulsive.
68a
In 1854, the Omaha Indian Tribe ceded most of its
aboriginal lands by treaty to the United States in exchange
for money and assistance to enable the Tribe to cultivate its
retained lands. Treaty of Mar. 16, 1854, 10 Stat. 1043; see
United States v. Omaha Indians, 253 U. S. 275, 277-278
(1920). The retained lands proved unsatisfactory to the
Tribe, and it exercised its option under the treaty to exchange
those lands for a tract of 300,000 acres to be designated by
the President and acceptable to the Tribe. The Blackbird
Hills area, on the west bank of the Missoun, all of which was
then part of the Terntory of Nebraska, was selected. The
eastern boundary of the reservation was fixed as the center
of the main channel of the Missouri River, the thalweg.’ That
land, as modified by a subsequent treaty and statutes,‘ has
remained the home of the Omaha Indian Tribe.
In 1867, a survey by T. H. Barrett of the General
Land Office established that the reservation included a large
peninsula jutting east toward the opposite, lowa, side of the
river, around which the river flowed in an oxbow curve
known as Blackbird Bend.*° Over the next few decades, the
>The term is commonplace in boundary disputes between mparian
States. See, e g., Minnesota v. Wisconsin, 252 U.S. 273, 282 (1920):
“The doctnne of Tha/weg. a modification of the more ancient pnnciple
which required equal division of terntory, was adopted in order to preserve
to each State equality of mght in the beneficial use of the stream as a means
of communication. Accordingly, the middle of the principal channel! of
navigation is commonly accepted as the boundary. Equality in the benefi-
cial use often would be defeated, rather than promoted, by fixing the
boundary on a given line merely because it connects points of greatest
depth. Deepest water and the principal navigable channel are not necessar-
ily the same. This rule has direct reference to actual or probable use in
the ordinary course, and common experience shows that vessels do not
follow a narrow crooked channel close to shore, however deep, when they
can proceed on a safer and more direct one witb sufficient water.”
* Treaty of Mar. 6, 1865, 14 Stat. 667; Act of June 22, 1874, 18 Stat.
146, 170, Act of Aug. 7, 1882, 22 Stat. 311; see also Act of Mar. 3, 1885,
23 Stat. 362, 370, as amended by Act of Jan. 7, 1925, ch. 34, 43 Stat. 726.
*There is some dispute over whether the Barrett survey actually
marked the reservation boundary because several years had passed since
the Tribe began occupying the reservation and the Missouri may have
changed its course during that period. See United States v. Wilson, 433
F. Supp. 67, 69, 74 (ND lowa 1977). This does not appear to be of
significance in the case. /d., at 75.
69a
river changed course several times, sometimes moving east,
sometimes west.° Since 1927, the river has been west of its
1867 position, leaving most of the Barrett survey area on
the lowa side of the river, separated from the rest of the
reservation.
As the area, now on the lowa side, dned out, Iowa
residents settled on, improved, and farmed it. These non-
Indian owners and their successors in title occupied the land
for many years prior to April 2, 1975, when they were
dispossessed by the Tribe, with the assistance of the Bureau
of Indian Affairs.
Four lawsuits followed the se. zure, three in federal court
and one in state court. The Federal Distnct Court for the
Northern District of lowa consolidated the three federal
actions, severed claims to damages and lands outside the
Barrett survey area, and issued a temporary injunction that
permitted the Tribe to continue possession. The court then
tried the case without a jury. At tnal, the Government and
Tribe argued that the mver’s movement had been avulsive,
and therefore the change in location of the mver had not
affected the boundary of the reservation. Petitioners argued
that the river had gradually eroded the reservation lands on
the west bank of the mver, and that the disputed land on the
east bank, in Iowa, had been formed by gradual accretion
and belonged to the east-bank riparian owners.’ Both sides
sought to quiet title in their names.
*In Nebraska v. lowa, 143 U. S. 359 (1892), the Court decided a
boundary dispute between the States of Nebraska and lowa caused by the
wanderings of the Missoun. “[T)he fickle Missoun River,” however,
“refused to be bound by the. . . decree,” Enksson, The Boundaries of lowa,
25 lowa J. of Hist. and Pol. 163, 234 (1927): and in 1943 Nebraska and
lowa entered into a Compact fixing the boundary between the States
independent of the nver's location. Congress ratified the Compact in the
Act of July 12, 1943, ch. 220, 57 Stat. 404. Since the time of the Compact,
the Army Corps of Engineers has been largely successful in taming the
river. See Nebraska v. lowa, 406 U.S. 117, 119 (1972).
The District Court stated the common-law rule, 433 F. Supp. 57, 62
(1977): “Simply stated, when a mver which forms a boundary between
two parcels of land moves by processes of erosion and accretion, the
boundary follows the movements of the river. Independent Stock Farm v.
Stevens, 128 Neb. 619, 259 N.W. 647 (1935). On the other hand, wken a
river which forms a boundary between two parcels of land abruptly moves
70a
The District Court concluded that state rather than
federal law should be the basis of decision. United States v.
Wilson, 433 F. Supp. 57 (1977). The court interpreted the
Rules of Decision Act, 28 U.S.C. § 1652, as not requirng the
application of federal law in land disputes, even though the
United States and an Indian tribe were claimants,® unless the
Constitution, a treaty, or an Act of Congress specifically
supplanted state law. The court found no indication in those
sources that federal law was to govern. It then went on to
conclude that 25 U.S.C. § 104 was not applicable to the case
because it was impossible for the Tribe to make out a pnma
facie case that it possessed the disputed lands in the past
without proving its case on the ments. Thus, § 104 had no
significance because it was “inextncably entwined with the
merits.” 433 F.Supp., at 66.°
Applying Nebraska law, '°which places the burden of
proof on the party seeking to quiet title, the court concluded
that the key changes in the river had been accretive, and that
from its old channel to a new channel through an event known as avulsion,
the boundary remains defined by the old nver channel. /owa Railroad
Land Co V. Coulthard. 96 Neb. 607, 148 N.W. 328(1914). The junsdiction
of Nebraska applies these pnnciples to the movements of the Missoun
River. DeLong v. Olsen, 63 Neb. 327, 88 N.W. $12 (1901).°This Court
has followed the same pmnciples resolving boundary disputes between
States bordering on navigable streams. Arkansas v. Tennessee, 246 U. S.
158, 173(1918); Missouri v. Nebraska, 196 U.S. 23, 34-36 (1904); Nebraska
v. Jowa, 143 U.S., at 360-361, 370.
*The District Court relied on Mason v. United States, 260 U. S. 545
(1923); Francis v. Francis, 203 U.S. 233 (1906); and Fontenelle v. Omaha
Tribe of Nebraska, 208 F.Supp. 855 (Neb. 1909), aff'd, 430 F. 2d 143 (CAS
1970).
*The Distnct Court also suggested that the possessory interest of the
Tribe was not of sufficient quality to tmgger the burden shifting contem-
plated by 25 U.S.C. § 194.
'°The District Court construed the Court's decision in Nebraska v.
lowa, 406 U.S. 117 (1972), as requiring the application of Nebraska law
with respect to changes in the mver that occurred before 1943, the date of
the lowa-Nebraska Compact that permanently fixed the boundary between
the States, because the land at issue here was indisputable part of Nebraska
before the river changed its course. 433 F. Supp., at 60, and n.2.
74
iia
the east-bank riparians, the petitioners, were thus the owners
of the disputed area. 433 F.Supp. 67 (1977)."'
The Court of Appeals reversed. 575 F.2d 620 (CAS
1978). It began by ruling that the Distnct Court should have
applied federal rather than state law for two distinct reasons.
First, the boundary of the reservation was coincidental with
an interstate boundary at the time the mver moved. There-
fore, under Oregon ex rel. State Land Board v. Corvallis Sand
& Gravel Co., 429 U.S. 363, 375 (1977), and other cases of
this Court, the governing law is federal because
“(t]he rendering of a decision in a private dispute which
would ‘press back’ an interstate boundary sufficiently
implicates the interests of the states to require the appli-
cation of federal common law.” 575 F.2d, at 628.
Second, the Court of Appeals construed our decision in
Oneida Indian Nation v. County of Oneida, 414 U.S. 661,
677 (1974), as requiring the application of federal law because
the Tribe asserted a right to reservation land based directly
on the 1854 treaty and therefore arising under and protected
by federal law.
The Court of Appeals also ruled that the Distnct Court
had erred by refusing to apply 25 U. S. C. § 194. Because
the Tribe had proved that the 1854 treaty included the land
area within the Barrett survey, it had made a sufficient
showing of “previous possession or ownership” to invoke the
statute and place the burden of proof on petitioners. Adopting
the District Court’s construction “would negate the applica-
tion of the § 194 statutory burden upon a pleading that simply
recites Indian land had been destroyed by the erosive action
of a river.” 575 F.2d, at 631.
'' Although the Distnct Coun hewed closely to Nebraska case law, it
also observed that insofar as the relevant definitions of avulsion and
accretion were concerned, there was no significant difference between lowa
and Nebraska law, except that under lowa law accretion was presumed,
which was not the case under Nebraska law. Because Nebraska law would
not aid the defendants by a presumption of accretion, the Tribe was favored
by the application of Nebraska law. The Distmct Cour was also of the
view that the federal accretion-avulsion law was not substantially different.
As we shall see, the Court of Appeals differed with the Distnct Court in
this respect.
OO
72a
Reviewing what it perceived to be the federal common
law of accretion and avulsion and with no more than passing
reference to Nebraska law on the issue, the Court of Appeals
concluded that the District Court had based its ruling on a
too narrow definition of avulsion.'? The court then applied
the law to the evidence and found that the evidence was in
equipoise. Because § 194 placed the burden of proof on the
non-Indians, however, the court ruled that judgment must be
entered for the Tribe.
We granted separate petitions for certiorari filed by the
State of lowa and its Conservation Commission in No. 78-
161 and by the individual petitioners in No. 78-160, but
limited to the questions whether 25 U.S. C. § 194 is applicable
in the circumstances of this case, in particular with respect
to the State of lowa, and whether federal or state law governs
the substantive aspects of these cases. 439 U.S. 963 (1978)."?
'? The Court of Appeals relied on two Gases, Veatch v. White, 23 F.2d
69 (CA9 1927), and Uhlhorn v. United States Gypsum Co., 366 F.2d 211
(CAS 1966), cert. denied, 385 U.S. 1026 (1967), in concluding that, under
federal law, “the sudden, perceptible change of the channel, whether within
or without the mver’s onginal bed, is a cntical factor in defining an
avulsion.” 575 F.2d 620, 637 (CA8 1978). This definition was broader
than the Nebraska rule as understood and applied by the Distnct Coun,
which the Court of Appeals described as follows: “an avulsion occurs only
where a sudden shift in a channel cuts off land ‘so that after the shift it
remains identifiable as land which existed before the change of the channel
and which never became a part of the nver bed.” Jd., at 634, quoting 433
F. Supp.. at 73. As is evident, the definition employed by the Court of
Appeals permits a finding of avulsion even where the mver is still largely
within its onginal bed.
"in No. 78-161, filed by the State of lowa and its Conservation
Commission, the questions on which certioran was granted were stated as
follows:
“Whether the State of lowa is ‘a white person’, and the Omaha
Indian Tribe 1s ‘an Indian’ within the meaning of 25 U.S. C. § 194.
“Whether federal law requires divestiture of lowa's apparent good
ttle to real property located witbin its boundaries.”
In No. 78-160, we granted certioran on the following questions:
“Whether the Eighth Circuit erroneously construed Title 25 U.S.
Code § 194 to make it applicable in this case.
“Whether the Eighth Circuit erred in holding that Federal and
not state common law with regard to accretin and avulsion is applicable
in this case.”
73a
We are in partial, but serious, disagreement with the
Court of Appeals, and vacate its judgment.
Petitioners challenge on several grounds the Court of
Appeals’ construction and application of § 194 to these
cases.'* First, they argue that by its plain language the section
does not apply when an Indian tnbe, rather than one or more
individual Indians, 1s the litigant. We think the argument is
untenable. The provision first appeared in slightly different
form in 1822, Act of May 6, 1822, 3 Stat. 683, as part of an
Act amending the 1802 Indian Trade and Intercourse Act,
Act of Mar. 30, 1802, 2 Stat. 139, which was one of a series
of Acts originating in 1700 and designed to regulate trade
and other forms of intercourse between the North American
Indian tribes and non-Indians.'* Because of recurring trespass
upon and illegal occupancy of Indian terntory, a major
purpose of these Acts as they developed was to protect the
rights of Indians to their properties. Among other things, non-
Indians were prohibited from settling on tribal properties, and
the use of force was authonzed to remove persons who
violated these restnctions. The 1822 provision was part of
this design; and with only slight change in wording, it was
incorporated in the 1834 consolidation of the various statutes
dealing with Indian affairs. Act of June 30, 1834, 4 Stat. 729.
Section 22 of that Act is now 25 U.S.C. § 104, already set out
in this opinion. Although the word “Indian” in the second
line of § 22 of the 1834 Act replaced the word “Indians” in
the 1822 provision, there is no indication that any change in
meaning was intended: and none should be implied at this
'*Of these vanous arguments, only the single ground relied on by the
Distnct Court in refusing to apply § 194 was discussed and rejected by the
Court of Appeals. The other grounds for holding § 194 inapplicable to
this case were presented by petitioners either in their bnefs on the ments
before the Court of Appeals or their petition for rehearing before that court
after st reversed the Distnct Court.
'* The background, history, and development of these laws and Acts
are explored exhaustively in F. Prucha, American Indian Policy in the
Formative Years: The Indian Trade and Intercourse Acts 1790-1834
(1962). See also Cohen, supra n. |, at 68-75.
74a
late date, particularly in light of 1 U.S.C. § 1, which provides
that unless the context indicates otherwise, “words importing
the singular include and apply to several persons, parties, or
things.”
Even construed as including the plural, however, it is
urged that the word “Indians” does not literally include an
Indian tribe, and that it is plain from other provisions of the
Act that Congress intended to distinguish between Indian
tribes and individual Indians. But as we see it, this proves
too much. At the time of the enactment of the predecessors of
§ 194, Indian land ownership was primarily tnbal ownership;
abonginal title, a possessory right, was recognized and was
extinguishable only by agreement with the tribes with the
consent of the United States. Oneida Indian Nation v.
County of Oneida, 414 U.S., at 660-670. Typically, this was
accomplished by treaty between the United States and the
tribe, and typically the land reserved or otherwise set aside
was held in trust by the United States for the tribe itself.
“*Whatever title the Indians have is in the tribe, and not in
the individuals, although held by the tnbe for the common
use and equal benefit of all the members.’” United States y.
Jim, 409 U. S. 80, 82 (1972), quoting Cherokee Nation v.
Hitchcock, 187 U. S. 294, 307 (1902). It is clear enough
that, when enacted. Congress intended the 1822 and 1834
provisions to protect Indians from claims made by non-
Indian squatters on their lands. To limit the force of these
provisions to lands held by individual Indians would be to
drain them of all significance, given the historical fact that at
the time of the enactment virtually all Indian land was tribally
held. Legislation dealing with Indian affairs “cannot be
interpreted in isolation but must be read in light of the
common notions of the day and the assumptions of those
who drafted them.” Oliphant v. Suquamish Indian Tribe, 435
U. S. 191, 206 (1978). Furthermore, “‘statutes passed for
the benefit of dependent Indian tribes...are to be liberally
construed, doubtful expressions being resolved in favor of
the Indians.’” Bryan v. liasca County, 426 U. S. 373, 392
(1976), quoting Alaska Pacific Fisheries, v. United States, 248
U.S. 78, 80 (1918).
75a
The second argument, presented in its most acute form
by the State of lowa, is that §194 applies only where the
Indians’ antagonist 1s an individual white person and has no
force at all where the adverse claimant is an artificial entity.'®
We cannot accept this broad submission. The word “person”
for purposes of statutory construction, unless the context
indicates to the contrary, 1s normally construed to include
“corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals.”
1 U.S.C. § 1. And in terms of the protective purposes of the
Acts of which §104 and its predecessors were a part, it would
make little sense to construe the provision so that individuals,
otherwise subject to its burdeis, could escape its reach merely
by incorporating and carrying on business as usual. As we
said in Monell v. New York City Dept. of Social Services, 436
U.S. 658, 687 (1978), “by 1871, it was well understood that
corporations should be treated as natural persons for virtually
all purposes of constitutional and statutory analysis.”'’ It
stands to reason that in re-enacting this provision in the
Revised Statutes, now codified in the United States Code,
Congress was fully aware that it would be interpreted to cover
artificial entities as well as individuals.
It nevertheless does not follow that the “white persons”
to whom will be shifted the burden of proof in title litigation
with Indians also include the sovereign States of the Union.
“{I]n common usage, the term ‘person’ does not include the
sovereign, [and] statutes employing the phrase are ordinarily
construed to exclude it.” United States v. Cooper Corp., 312
U.S. 600, 604 (1041); accord, United States v. Mine Workers,
'® Petitioners cite United States v. Perryman, 100 U.S. 235 (1880), as
support for their position that § !94 must be construed literally to apply
only to a “white person,” or individual Caucasian. But that case dealt
with another provision of the 1834 Nonintercourse Act, § 16, and there
were distinct grounds in the legislative bistory indicating that the term
“white person” as used in § 16 did not include a Negro. Whether Perryman
would be followed today is a question we need not decide.
'’ There were two corporate defendants among the parties in the
Distnct Court. They filed a separate petition for certioran, No. 78-162,
RGP. Inc. v. Omaha Indian Tribe, but no action has yet been taken on it.
Under our Rules, however, the two corporations are party-respondents in
the cases in which we have granted certioran. Rule 21 (4).
———————eEOEOeEeEeEeEeEeEe
76a
330 U.S. 258, 275 (1047). Particularly is this true where the
Statute imposes a burden or limitation, as distinguished from
conferring a benefit or advantage. United States v. Knight,
14 Pet. 301, 315 (1840). There is nevertheless “no hard and
fast rule of exclusion,” United States v. Cooper Corp., supra,
at 604-605; and much depends on the context, the subject
matter, legislative history, and executive interpretation. The
legislative history here if uninformative, and executive inter-
pretation is unhelpful with respect to this dormant statute.
But in terms of the purpose of the provision—that of preven-
ting and providing remedies against non-Indian squatters on
Indian lands—it is doubtful that Congress anticipated such
threats from the States themselves or intended to handicap
the States so as to offset the likelihood of unfair advantage.
Indeed, the 1834 Act, which included § 22, the provision
indentical to the present § 194, was “intended to apply to the
whole Indian country, as defined in the first section.” H.R.
Rep. No. 474, 23d Cong., Ist Sess., 10 (1834). Section |
defined Indian country as being “all that part of the United
States west of the Mississippi, and not within the states of
Missouri and Louisiana, or the termtory of Arkansas, and,
also, that part of the United States east of the Mississippi
River, and not within any state to which the Indian title
has not been extinguished...” 4 Stat. 720. Although this
definition was discarded in the Revised Statutes, see Rev.
Stat. § 5596, it is apparent that in adopting § 22 Congress
had in mind only disputes ansing in Indian country, disputes
that would not arise in or involve any of the States.
Nor have we discovered anything since its passage or
in connection with the definition of Indian country now
contained in the Criminal Code, 18 U.S.C. § 1151, indicating
that Congress intended the words “white person” in § 194 to
include any of the original or any of the newly admitted
States of the Union. We hesitate, therefore, to hold that the
State of lowa must necessarily be disadvantaged by § 104
when litigating title to the property to which it claims owner-
ship, particularly where its opposition is an organized Indian
tribe litigating with the help of the United States of America.
It may well be that a State, like other litigants and like the
77a
State of lowa did in this case, will often bear the burden of
proof on various issues in litigating the title to real estate.
But § 194 operates regardless of the circumstances once the
Tribe or its champion, the United States, has demonstrated
that the Tribe was once in possession of or had title to the
area under dispute.
Petitioners also defend the refusal of the District Court
to apply § 194 on the grounds that a precondition to applying
it is proof of prior possession or title in the Indians and that
this involves the merits of the issue on which this case turns—
whether the changes in the river were avulsive or accretive.
We think the Court of Appeals had the better view of the
Statute in this regard. Section 194 is tnggered once the Tribe
makes out a prima facie case of pnor possession or title to
the particular area under dispute. The usual way of describing
real property is by identifying an area on the surface of the
earth through the use of natural or artificial monuments.
There seems to be no question here that the area within the
Barrett survey was once riparian land lying on the west bank
of the Missouri River and was Jong occupied by the Tribe as
part of the reservation set apart for it in consequence of the
treaty of 1854. This was enough. it seems to us, to bring §
194 into play. Of course, that would not foreclose the State
of lowa from offering sufficient evidence to prove its own
title or from prevailing on any affirmative defenses it may
have.
Petitioners also assert that even if § 194 1s operative and
even if the Tribe has made out its prima facie case, only the
burden of going forward with the evidence, and not the
burden of persuasion, is shifted to the State. Therefore they,
the petitioners, should prevail if the evidence is in equipoise.
The term “burden of proof may well be an ambiguous
term connoting either the burden of going forward with the
evidence, the burden of persuasion, or both. But in view
the evident purpose of the statute and its use of the term
“presumption” which the “white man” must overcome, we
are im agreement with the two courts below that § 194
contemplates the non-Indian’s shoulderng the burden of
persuasion as well as the burden of producing evidence once
the tribe has made out its prima facie case of prior title or
In Oregon ex rel. State Land Board v. Corvallis Sand &
Gravel Co., 429 U.S. 363 (1977), this Court held that, absent
an overriding federal interest, the laws of the several States
determine the ownership of the banks and shores of water-
ways. This was expressive of the general rule with respect to
the incidents of federal land grants:
““We hold the true pmnciple to be this, that whenever
the question in any Court, state or federal, is, whether a
title to land which had once been the property of the
United States has passed, that question must be resolved
by the laws of the United States; but that whenever,
according to those laws, the title shall have passed, then
that property, like all other property in the state, is subject
to state legislation; so far as that legislation is consistent
with the admission that the title passed and vested
according to the laws of the United States.’” Id., at 377,
quoting Wilcox v. Jackson, 13 Pet. 498, 517 (1839)
(emphasis added by the Corvallis Court).
The Court’s conclusion in the particular dispute before it in
Corvallis was that state law governed the nghts of the mpanan
owner because there was no claim of an applicable federal
right other than the equal-footing origin of the State's title.
As the Court of Appeals held, however, the general rule
recognized by Corvallis does not oust federal iaw in this case.
Here, we are not dealing with land tities merely derived from
a federal grant, but with land with respect to which the United
States has never yielded title or terminated its interest. The
area within the survey was part of land to which the Omahas
had held aboriginal title and which was reserved by the Tribe
and designated by the United States as a reservation and the
Tribe’s permanent home. The United States continues to
hold the reservation lands in trust for the Tribe and to
reocognize the Tribe pursuant to the Indian Reorganization
Act of 1934, 48 Stat. 984, 25 U.S.C. § 461 ef seg.
79a
In these circumstances, where the Government has never
parted with title and its interest in the property continues,
the Indians’ right to the property depends on federal law,
“wholly apart from the application of state law principles
which normally and separately protect a valid mght of posses-
sion.” Oneida Indian Nation vy. County of Oneida, 414 U.S.,
at 677. It is rudimentary that “Indian title is a matter of
federal law and can be extinguished only with federal consent”
and that the termination of the protection that federal! law,
treaties, and statutes extend to Indian occupancy is “exclusi-
vely the province of federal law.” Jd., at 670. Insofar as the
applicable law is concerned, therefore, the claims of the
Omahas are “clearly distinguishable from the claims of land
grantees for whom the Federal Government has taken no
such responsibility.” /d., at 684 (REHNQuISsT, J., concurring).
This is not a case where the United States has patented or
otherwise granted lands to private owners in a manner that
terminates its interest and subjects the grantees’ incidents of
ownership to determination by the applicable state law. The
issue here is whether the Tribe is no longer entitled to
possession of an area that in the past was concededly part of
the reservation as originally established. That question,
under Oneida, is a matter for the federal law to decide.'®
Petitioners claim that Oklahoma v Texas,. 258 U.S. 574 (1922),
mandates the applicability of state rather than federal law in this case. But
there the United States issued patents granting former reservation lands.
The Court merely held that, absent contrary evidence, when the United
States conveyed and completely parted with its terntory, even though
Indian land, it intended the incidents of the resulting ownership to be
determined by state law. This is no more than the general rule that Oneida
recognized. In the present case, of course, the area at issue was never
conveyed away by the United States or by the Tnbe and ts claimed by the
United States and the Tnbe to remain as part of the reservation established
as the result of the treaty of 1854. Neither do we find that United States
1 Oklahoma Gas & Electric Co., 318 U.S. 206 (1943), presents a contrary
holding. There. the Court refused to construe a federal statute permitting
the Secretary of the Intenor to grant permission for the opening of highways
over Indian land “in accordance witb the laws of the state” as probibiting
the establishment of a power line in the highway nght-of-way witbout
further federal consent. /d., at 208. As we understand that case, the Court
held only that the consent authorized by the federal statute included the
uses which such consent would authonze under state law.
80a
Although we have determined that federal law ultimately
controls the issue in this case, it is still true that “[c] ontrover-
sies .. .governed by federal law, do not inevitably require
resort to uniform federal rules ... Whether to adopt state
law or to fashion a nationwide federal-rule is a matter of
judicial policy ‘dependent upon a vanety of considerations
always relevant to the nature of the specific governmental
interests and to the effects upon them of applying state law.””
United States v. Kimbell Foods, Inc., 440 U.S. 715, 727-728
(1979), quoting United States v. Standard Oil Co., 332 U.S.
301, 310(1947).'? The Coun of Appeals, noting the existence
of a body of federal law necessarily developed by this Court
in the course of adjudicating boundary disputes between
States having their common border on a navigable stream,
purported to find in those doctrines the legal standards to
apply in deciding whether the changes in the course of the
Missouri River involved in this case had been avulsive or
accretive in nature.
The federal law applied in boundary cases, however, does
not neccessarily furnish the appropnate rules to govern this
case. No dispute between lowa and Nebraska as to their
common border on or near the Missoun River is involved
here. the location of that border on the ground was settled
by Compact in 1943 and by further litigation in this Coun,
Nebraska v. lowa, 406 U.S. 117 (1972). The federal interest
in this respect has thus been satished, except to the extent
that the Compact itself may bear upon a dispute such as this.
United States v. Kimbell Foods, Inc., supra, advises that at
this juncture we should consider whether there is need for
a nationally uniform body of law to apply in situations
zomparable to this, whether application of state law would
'*Compare P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart &
Wechsler’s The Federal Courts and the Federal System 768 (2d ed. 1973):
“The federal ‘command’ to incorporate state law may be a judicial
rather than a legislative command, that is, it may be determined as a
matter of choice of law, even in the absence of statutory command or
implication, that, although federal law should ‘govern’ a given question,
state law furnishes an appropnate and convenient measure of the content
of this federal law.”
8la
frustrate federa! policy or functions, and the impact a federal
rule might have on existing relationships under state law. An
application of these factors suggests to us that state law should
be borrowed as the federal rule of decision here.
First, we perceive no need for a uniform national rule to
determine whether changes in the course of a river affecting
riparian land owned or possessed by the United States or by
an Indian tmbe have ben avulsive or accretive. For this
purpose, we see little reason why federal interests should not
be treated under the same rules of property that apply to
private persons holding property in the same area by virtue
of state, rather than federal, law. It is true that States may
differ among themselves with respect to the rules that will
identify and distinguish between avulsions and accretions,
but as long as the applicable standard is applied evenhandedly
tO particular disputes, we discern no imperative need to
develop a general body of federal common law to decide cases
such as this, where an interstate boundary is not in dispute.
We should not accept “generalized pleas for uniformity as
substitutes for concrete evidence that adopting state law
would adversely affect [federal interests].” United States v.
Kimbell Foods, Inc., supra, at 730.
Furthermore, given equitable application of state law,
there 1s little likelihood of injury to federal trust responsibilit-
1es Or to tribal possessory interest. On some occasions, Indian
tribes may lose some land because of the application of a
particular state rule of accretion and avulsion, but it is as
likely on other occasions that the tnbe will stand to gain. The
same would be the case under a federal rule, including the
rule that the Court of Appeals announced in this case. The
United States fears a hostile and unfavorable treatment at
the hands of state law, but, as we have said, the legal issues
are federal and the federal courts will have jurisdiction to
hear them. Oneida Indian Nation v. County of Oneida, 414
U.S. 661 (1974). Adequate means are thus available to insure
fair treatment of tribal and federal interests.
This is also an area in which the States have substantial
interest in having their own law resolve controversies such
82a
as these. Private landowners rely on state real property law
when purchasing real property, whether nparian land or not.
There is considerable merit in not having the reasonable
expectations of these private landowners upset by the vagaries
of being located adjacent to or across from Indian reservations
or other property in which the United States has a substantial
interest. Borrowing state law will also avoid arriving at one
answer to the avulsive-accretion mddle in disputes involving
Indians on one side and possibly quite different answers
with respect to neighboring land where non-Indians are the
disputants. Indeed, in this case several hundred acres of land
within the Barrett survey are held in fee, and concededly are
not Indian property. These tracts would not be governed by
the federal rule announced by the Court of Appeals.
We have borrowed state law in Indian cases before. In
Board of Comm'rs v. United States, 308 U.S. 343 (1939), the
question was what law, federal or state, would apply in
a claim to recover taxes improperly levied by a political
subdivision of a State upon Indians’ trust lands. The Court
observed that “[sJince the origin of the mght to be enforced
is the Treaty, plainly whatever rule we fashion is ultimately
attributable to the Constitution, treaties or statutes of the
United States, and does not owe its authority to the law-
making agencies of Kansas.” J/d., at 349-350. The Court,
nevertheless, elected to adopt state law as the federal rule of
decision. There was no reason in the circumstances of the
case for the beneficiaries of federal rights to have a privileged
position over other aggrieved taxpayers, and “[t]o respect the
law of interest prevailing in Kansas in no wise impinges upon
the exemption which the Treaty of 1861 has commanded
Kansas to respect and the federal courts to vindicate.””°
2° See Board of Comm'rs v. United States, 308 U.S., at 351-352:
“Having left the matter at large for judicial determination within the
framework of familiar remedies equitable in their nature, see Sione v.
Whuc, 301 U.S. 532, 534, Congress has left us free to take into account
appropnate consideration of ‘public convenience,’ Cf. Virginian Ry. Co.
v. Federation, 300 U.S. 515, 552. Nothing seems to us more appropriate
than due regard for local institutions and local interests. We are concerned
with the interplay between the nghts of Indians under federal guardianship
and the local repercussion of those rights. Congress has not been heedless
of the interests of the states in which Indian lands were situated, as reflected
83a
The importance of attending to state law, once an inter-
state boundary has been determined, is underlined by Arkan-
sas v. Tennessee, 246 U.S. 158 (1918). In that case, because
the disputed boundary between Arkansas and Tennessee had
been determined, the question of title to mparian land and
to the river bottom was a matter to be Jetermined by local
law:
“How the land that emerges on either side of an
interstate boundary stream shall be disposed of as be-
tween public and private Ownership ts a matter to be
determined according to the law of each State, under the
familiar doctrine that it is for the State to establish for
themselves such rules of property as they deem expedient
with respect to the navigable waters within their borders
and the riparian lands adajacent to them.... But these
dispositions are in each case limited by the interstate
boundary, and cannot be permitted to press back the
boundary line from where otherwise it should be lo-
cated.” Jd., at 175-176.
Likewise, in the present case, the Compact of 1943 settled
the location of the interstate boundary, within and without
the mver; and the question of land ownership withi
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