# Appendix — Omaha Indian Tribe v. Agricultural & Industrial Investment Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2752%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 502 U.S. 942 ## Text 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 enabl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2752%3A2. Public record. Not legal advice.