Petition — United States v. Wilson
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Uffice - supreme Court, US
: FILED
83-952 DEC 8 1983
No.
ALEXANDER LW STEVAS.
—
Iu the Supreme Court of the United States
OCTOBER TERM, 1983
UNITED STATES OF AMERICA, PETITIONER
Vv.
JOHN R. WILSON, ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
REx E. LEE
Solicitor General
F. HENRY HABICHT, II
Assistant Attorney General
Louis F. CLAIBORNE
Deputy Solicitor General
KATHRYN A. OBERLY
Assistant to the Solicitor General
CLAIRE L. MCGUIRE
DAviD C. SHILTON :
Attorneys :
Department of Justice |
Washington, D.C. 20530
(202) 633-2217
~~ ae > aa
ee :
QUESTION PRESENTED
Whether, in a quiet title action brought by the
United States as trustee for the Omaha Indian Tribe,
sovereign immunity bars the trespassers from assert-
ing a counterclaim against the United States for the
value of improvements they placed on the lands in
issue during the time they were wrongfully in pos-
session.
(1)
PARTIES TO THE PROCEEDING
The parties asserting a counterclaim for improve-
ments, respondents herein, are John R. Wilson (the
personal representative of Roy Tibbals Wilson, now
deceased), Charles E. Lakin, Florence Lakin, Harold
Jackson, RGP, Inc., and Otis Peterson. Other re-
spondents under Rule 19.6 of the Rules of this Court
are Darrell L. Sorenson, Harold Sorenson, Harold M.
Sorenson, Luea Sorenson, Travelers Insurance Com-
pany, the State of Iowa, the State Conservation Com-
mission of the State of Iowa, and the Omaha Indian
Tribe.
Page
Opinions below ................ seoclaviantubehbinanniigasiasaniamnitinn dail 1
AES gC ae ar OE 1
I ini wc coipnihshotninsiitindinnnicipebesnidngeimnuaidmeadond 2
Reasons for granting the petition —.......00..0..........ccccccceeee 8
0 ERR el eee ae eee» EER heel 18
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SIT TY att caine Saecisetinsscitionnsinenesini eatetglauapieasasibeensiinaaettcaghenen 27a
IED EERE Sa ee Ch 28a
TABLE OF AUTHORITIES
Cases:
Arkansas V. Tennessee, 246 U.S. 158 .............ccccc00 4-5
Bull v. United States, 295 U.S. 247 00.0.0... ccecceeeeeee 12
Capitan Grande Band of Mission Indians Vv. Heliz
Irrigation District, 514 F.2d 465, cert. denied,
SN RR ee iiteincisectsngdepeenncnedieintighacniesttinadaimiieae atid 15
Covelo Indian Community v. Watt, 551 F. Supp.
866, vacated as moot, No. 82-2377 (D.C. Cir.
8 a ee Oe eee ees 16
Ehrlich v. United States, 252 F.2d 772 .................... 14
Ewert Vv. Bluejacket, 259 U.S. 129 .....22...2..2..00220cc000 15
Heckman V. United States, 224 U.S. 418 .................. 14
Illinois Central R.R. v. State Public Utilities Com-
I, BD SI GP Lricesseresnteseiintinenabeienncthitzcniociines 10
Jacobs V. United States, 239 F.2d 459, cert. denied,
NRO SRR © it > RD 14-15
Joint Tribal Council of the Passamaquoddy Tribe v.
SD gf Sa OF eS RR 16
(mm)
Iv
Cases—Continued : Page
Lacy V. United States, 216 F.2d 228 ..........-...-.0cs-ee0 14
Land ¥. Dollar, 880 U.S. 781 .............cccccecsssecesseseseees 10
Larson Vv. Domestic & Foreign Commerce Corp.,
a CR RRP ele he Sena 10
Moe V. Confederated Salish & Kootenai Tribes, 425
TES en AN SENET Pay Ras ORT os 17
Nassau Smelting & Refining Works, Ltd. v. United
SM ES I i, cs inciiniatieniaaiiine 10
Nebraska V. Iowa, 406 U.S. 117 ...0..........cccceeeeeeseeeneeee 3
Omaha Indian Tribe v. Wilson, 614 F.2d 1153, cert.
es ns ae 2, 3,5
Oneida Indian Nation vy. County of Oneida, Nos.
82-7436, 82-7486 & 82-7526 (2d Cir. Sept. 29,
BI asc eck eciecarnciocis ket ainmbeehgnanseiigslledtes tesa 12
Oneida Indian Nation v. County of Oneida, 414
OE GaN alice RERC GEREN Meter toe OF 2 nT er Te 15
Oneida Indian Nation v. New York, 691 F.2d
er PRS TR Ne Ne VOM IRD A Ry Saree RAE MAR 15
Pan American Petroleum & Transport Co. V.
United States, 273 U.S. 456 ................cccccccceeeeeeeee 12, 18, 14
Sierra Club vy. Hickel, 467 F.2d 1048, cert. denied,
Be RAC Cet SS LATED AR ae she 14
United States Vv. Bedford Associates, 618 F.2d
TEs Fe A ae ee 14
United States v. Detroit Timber & Lumber Co.,
aE is icinceicitseninincnegianigscriliilitcien hts acta diiaiatet 18
United States v. Louisiana, 446 U.S. 258 .................. 15
United States v. Second National Bank of North
Miami, 502 F.2d 535, cert. denied, 421 U.S.912... 18-14
United States v. Shaw, 309 U.S. 495 -..........2......-.. 8, 10
United States v. United States Fidelity & Guaranty .
i, a et Oe deter icanin ateneieitt ieticnntvticnicinens 8, 10
versed and remanded, 707 F.2d 804 ................... 3
United States v. Wilson, 483 F. Supp. 57 and 433
F. Supp. 67, vacated and remanded sub nom.
Omaha Indian Tribe v. Wilson, 575 F.2d 620,
vacated and remanded, Wilson v. Omaha Indian
TO, GE UB, GD cccccnctnets hte 2-3, 4, 5,6
4 a
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v
Statutes and rule: Page
Act of Mar. 3, 1797, 28 U.S.C. (1940 ed.) 774, now
codified at 28 U.S.C. 2406 ................cccccessececeesseeee 10, 11
Indian Claims Limitation Act of 1982, Pub. L. No.
97-394, 96 Stat. 1976 ef 86q.: ..........:cccccecececcenesceees 16
ek CIE RC Serle S 16
fo eS | aa pee ee 16
By RR Ce ee Se 17
Nebraska Occupants and Claimants Act, Neb. Rev.
Stat. §§ 76-301 to 76-311 (reissue 1981) ............ 7
eS: SRM ITS AR oon Mal cde tee at 15
te III sain srdncsidesesictnagpttaaberummedaioainemnaliadiauamasde 16
SRI: TNE IIE <dsnscachconlisctincensomentieebaamnatsiot deohiiabesinee dal tasniaals 6
Miscellaneous:
48 Fed. Reg. (1983):
PS IE ee IY Sie 17
ERGO SS 17
Iu the Supreme Court of the United States
OCTOBER TERM, 1983
No.
UNITED STATES OF AMERICA, PETITIONER
Vv.
JOHN R. WILSON, ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
The Solicitor General, on behalf of the United
States, petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals
for the Eighth Circuit in this case.
OPINIONS BELOW
The opinions of the court of appeals (App. A,
infra, la-l4a; App. C, infra, 18a-23a) are reported
at 707 F.2d 304. The opinion of the district court
(App. F, infra, 28a-79a) is reported at 523 F. Supp.
874.
JURISDICTION
The initial judgment of the court of appeals was
entered on October 26, 1982 (App. B, infra, 15a-17a).
Petitions for rehearing were filed by some of the re-
spondents herein, and the court of appeals thereafter
issued a modified opinion (App. C, infra, 18a-28a).
A new judgment was entered on June 10, 1983 (App.
(1)
2
D, infra, 24a-26a). The United States’ petition for
rehearing of the decision as modified was denied on
August 11, 1988 (App. E, infra, 27a). On October
81, 1983, Justice Blackmun extended the time for
filing a petition for a writ of certiorari to and in-
cluding December 9, 1983. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
This case concerns the jurisdiction of the federal
courts to entertain counterclaims seeking monetary
relief against the United States when the government
initiates a quiet title action to establish ownership
and regain possession of land belonging to an Indian
tribe. That question is presented here only in respect
of some 2,200 acres finally determined to be part of
the Omaha Indian Reservation, the title to which is
held by the United States for the benefit of the Tribe.
Omaha Indian Tribe v. Wilson (“Omaha II’’), 614
F.2d 1153 (8th Cir.), cert. denied, 449 U.S. 825
(1980). See App. A, infra, 4a. Although no title is-
sue remains open as to these lands, the court of ap-
peals has now held, upon petition for rehearing in
subsequent proceedings relating to additional lands
not before this Court, that, as a condition of taking
title to the 2,200 acres, the United States must reim-
burse the trespassers for the value of their improve-
ments. App. C, infra, 18a-23a. For present purposes,
therefore, the underlying facts are of little relevance
and are, in any event, already familiar to this Court.
See Wilson v. Omaha Indian Tribe, 442 U.S. 653
(1979). In these circumstances, we summarize the
complex history of the case as briefly as possible.’
1 This case has been the subject of numerous decisions; in
chronological order, those decisions are: United States v.
1. A treaty entered into on March 16, 1854, be-
tween the Omaha Indian Tribe and the United States
resulted in the creation of the Omaha Indian Reserva-
tion along the west (or right descending) bank of the
Missouri River in what was then the Territory of
Nebraska. See Wilson v. Omaha Indian T'ribe, 442
U.S. at 658-659 & n.4. In 1867, a survey by T.H.
Barrett of the General Land Office established that,
at that time, the Missouri River, where it was the
boundary of the reservation, looped sharply to the
east, creating a “lobe or peninsula sticking out like a
thumb pointing east from Nebraska into Iowa.”
United States v. Wilson, 433 F. Supp. 67, 69 (N.D.
Iowa 1977). Throughout this litigation, this lobe has
been referred to as the Barrett Survey area.
Over the years, the Missouri River has shifted its
course many times—so often, in fact, that the States
of Iowa and Nebraska, whose common boundary the
River was, in 1943 entered into an Interstate Com-
pact establishing a fixed boundary between them.
See Nebraska v. Iowa, 406 U.S. 117 (1972). This
fixed boundary, though, was not congruent with the
River as it existed in 1943 (see Wilson v. Omaha In-
dian Tribe, 442 U.S. at 659 n.6), or as it exists today.
In fact, the Barrett Survey area, once west of the
Missouri River and thus immediately contiguous to
Wilson, 483 F. Supp. 57 and 483 F. Supp. 67 (N.D. Iowa
1977), vacated and remanded sub nom. Omaha Indian Tribe
v. Wilson, 575 F.2d 620 (8th Cir. 1978), vacated and re-
manded, Wilson v. Omaha Indian Tribe, 442 U.S. 658 (1979) ;
remanded to district court, Omaha Indian Tribe v. Wilson,
614 F.2d 1158 (8th Cir.), cert. denied, 449 U.S. 825 (1980);
United States v. Wilson, 528 F. Supp. 874 (N.D. Iowa 1981),
reversed and remanded, United States v. Wilson, 707 F.2d
304, as modified on rehearing, 707 F.2d 311 (8th Cir. 1983).
5
i
pe aia
fa ae
4
the Indian reservation, is now east of the Missouri
River and therefore separated from the other lands of
the reservation. See id. at 659. For many years prior
to 1975, non-Indians farmed the lands within this
cutoff loop and claimed ownership of those lands (id.
at 659-660).
2. In 1975, the United States brought an action to
quiet title, as trustee for the Omaha Indian Tribe, to
“all those lands now lying within the Barrett Survey,
approximately 2900 acres, and extending to the cen-
ter of the main channel of the Missouri River as it
existed when the Reservation was created.” United
States v. Wilson, 433 F. Supp. at 70.7 At about the
same time, the Tribe brought two actions in federal
court, seeking relief similar to that sought by the
United States, but with two important differences.
First, the Tribe sought to quiet title in itself to a
larger area (encompassing approximately 11,000
acres); in addition, the Tribe sought damages for
the claimed illegal trespasses. bid. The Tribe’s claim
of title to the additional acreage, as well as its claim
for damages, was severed from the suit brought by
the United States. “This left the 2900 acres within
the Barrett Survey as the subject matter of this [liti-
gation] since the dispute over that land is common
to all three lawsuits.” Jd. at 69.
The United States and the Tribe based their claim
to the lands within the Barrett Survey area on the
theory that the Missouri River had changed its
course avulsively (see generally Arkansas v. Tennes-
2 Certain so-called “fee-patented lands,” totalling approxi-
mately 400 acres, were excepted from the claim of the United
States. These lands had earlier been allotted to individual
members of the Tribe and subsequently sold to non-members.
See United States v. Wilson, 483 F. Supp. at 70.
ior
5
see, 246 U.S. 158, 175 (1918) ), and, accordingly, that
the boundary of the reservation did not move but re-
mained in the middle of the channel of the Missouri
River as it existed at the time of the change. The
defendants, on the other hand, argued that the
River’s migration westward had been by the natural
and gradual processes of erosion and accretion and
that the boundary of the reservation therefore re-
treated westward with the River. See Wilson v.
Omaha Indian Tribe, 442 U.S. at 660.
Applying the legal principles established by this
Court in Wilson v. Omaha Indian Tribe, supra, the
court of appeals on remand ordered title to approxi-
mately 2,200 of the 2,900 acres claimed by the United
States to be quieted in the United States as trustee
for the Tribe. Omaha Indian Tribe v. Wilson, 614
F.2d 1153 (8th Cir.), cert. denied, 449 U.S. 825
(1980).* The present petition does not involve any
title issues, but instead relates to that portion of the
court of appeals’ decision (App. C, infra, 18a-23a)
requiring the United States to pay respondents‘ for
3 The question of title to the remaining 700 acres within the
Barrett Survey area—being the so-called “fee-patented lands”
not claimed by the United States (see page 4, note 2, swpra)
and lands claimed by the State of Iowa—as well as the
claim of the Omaha Indian Tribe to lands outside the Barrett
Survey area and its claim for damages remain to be decided
by the district court. The district court, in its latest ruling,
quieted title to the remaining 700 acres in the Tribe and the
United States as trustee for the Tribe (App. F, infra, 28a-
70a), but the court of appeals concluded that the district court
had applied an incorrect burden of proof as to those lands
and accordingly reversed and remanded that aspect of the case
for further proceedings. (App. A, infra, la-14a).
* As used in this petition, “respondents” refers only to those
parties seeking compensation from the United States for im-
the value of improvements made upon the 2,200 acres
of land within the Barrett Survey area to which title
has been quieted in the United States as trustee for
the Tribe.
8. In the answers filed by respondents in the quiet
title action instituted by the United States (No. C
75-4024 (N.D. Iowa)), respondents counterclaimed
for a judgment quieting title in themselves and for
“such other relief as the Court may find justified’
* * *” Upon remand from the court of appeals
after title had been quieted in the United States as
trustee, respondents announced that “such other
relief” encompassed the value of improvements placed
upon the land by them or their predecessors in inter-
est.© Respondents argued that general principles of
equity are binding on the United States and that, as
a condition precedent for obtaining equitable quiet
title relief, the government must do equity by reim-
bursing them for the improvements referenced above
(App. F, infra, 70a). As an alternative basis for
recovery, respondents argued that Nebraska law en-
titled them to recover for improvements, relying on
provements placed upon the land while they were wrongfully
in possession, and not to parties who are respondents in this
Court only by virtue of Rule 19.6 of the Rules of this Court.
© The district court in one of its earlier decisions described
the land in question as having been “cleared of trees, leveled,
fenced, drained, roads built, and cultivated.” United States v.
Wilson, 433 F. Supp. at 69. These are, apparently, the im-
provements for which respondents now seek compensation.
The district court noted that, with these improvements, the
land “is now a valuabie and productive tract of farm ground,
as evidenced by the purchase of 2,180 acres by defendant
Wilson in 1972 by Warranty Deed for a consideration valued
at $1,685,000, approximately 1780 acres of which is within
the Barrett Survey and the subject of this trial.” Ibid.
7
the Nebraska Occupants and Claimants Act, Neb.
Rev. Stat. §§ 76-301 to 76-311 (reissue 1981) (App.
F, infra, 70a).* The district court rejected respond-
ents’ arguments, holding that the sovereign immunity
of the United States barred any counterclaim for im-
provements and that Congress has not consented to
the application of the Nebraska statute to lands
owned by the United States in trust for the Omaha
Indian Tribe (id. at 70a-76a).
In its initial decision entered on October 26, 1982,
the court of appeals thought it was unnecessary to
rule on the viability of respondents’ counterclaim be-
cause the issue appeared not to be ripe for decision
(App. A, infra, 13a n.11):
[Respondents] also appeal the district court’s
denial of their request for the value of improve-
ments they made to Barrett Survey land during
their possession of it. It is our understanding
that the improvements were made solely on the
particular tracts of land in controversy here,
and not on the trust lands with respect to which
this court has. already indicated title must be
quieted in the Tribe and the United States.'” If
*In pertinent part, the Nebraska statute requires that the
successful claimant in a quiet title action must either pay for
the improvements on the property or return them to the tres-
passer. If the successful claimant fails to do either, then the
trespasser may regain title by paying into court the value of
the real estate without improvements. See App. F, infra, 76a
& n.26.
™The “particular tracts of land in controversy here” are
the 700 acres as to which the court of appeals held that the
district court had applied an erroneous burden of proof in
determining that title should be quieted in the United States
and the Tribe. See page 5 note 3, supra.
8
we are correct, then clearly we need not rule on
this issue in view of our remand.
Respondents sought rehearing, claiming, inter alia,
that improvements had been made to the lands on
which title had been quieted in the United States as
trustee for the Tribe, thus making it necessary for
the court to rule on the sovereign immunity issue
(App. C, infra, 21a). The court of appeals granted
rehearing on that issue’ and reversed the district
court’s ruling in favor of the United States (id. at
23a). The court of appeals held that, as a general
rule, the plaintiff in a quiet title action must do
equity by reimbursing the party in wrongful posses-
sion for the value of improvements as a condition
precedent to the plaintiff’s right to relief (id. at 21a).
The court found no reason not to apply this doctrine
to the United States. “[T]he duty to pay for the
value of improvements,” the court held, “is an ele-
ment of the government’s own claim, a condition pre-
cedent to the right of the United States to recover”
and “does not arise as a result of finding adverse to
it on a counterclaim by the [respondents]” (id. at
22a-23a). Accordingly, the court of appeals deter-
mined that the doctrine of sovereign immunity was
simply “inapplicable” (id. at 23a).
REASONS FOR GRANTING THE PETITION
The decision of the court of appeals conflicts with
decisions of this Court holding that in the absence of
statutory authorization courts do not have jurisdic-
tion over counterclaims against the United States.
See United States v. Shaw, 309 U.S. 495 (1940);
United States v. United States Fidelity & Guaranty
Co., 309 U.S. 506 (1940). In this quiet title action
brought by the United States on behalf of the Omaha
9
Indian Tribe, no statute authorizes respondents’
counterclaim for the value of improvements placed on
the land. Accordingly, the court of appeals was
plainly wrong in requiring the United States, which
had sought no trespass damages from the respond-
ents, to pay respondents for the value of improve-
ments the United States did not ask to be made.
The court of appeals’ decision could have a sub-
stantial adverse effect on the many quiet title actions
brought by the United States each year, both on its
own behalf and in its capacity as trustee for the In-
dians. In carrying out its obligations on behalf of
Indians and the general public to recover wrongfully
occupied lands, the United “‘ates may be subjected
to significant and unexreccéu liabilities. While the
government could protect itself in part by seeking
trespass damages against which counterclaims for
improvements could be offset, it should not be forced
to elect to seek trespass damages in all cases. Indeed,
in many quiet title actions, including the present one,
the United States decides on equitable grounds to
forego trespass damages to which it would otherwise
be entitled in recognition of the fact that the defend-
ants may be “innocent” trespassers. But such gov-
ernmental self-restraint obviously does not sanction
courts to super-impose their own notions of equity as
conditions on the United States’ right to bring suit.
The clear conflict with this Court’s decisions barring
unauthorized counterclaims, along with the impor-
* Although the court of appeals remanded the case to the
district court for further proceedings reliting to respondents’
claim for the value of the improvements (App. A, infra, 28a &
n.1), there is no reason to postpone review by this Court. The
10
l.a. In United States v. Shaw, supra, this Court
clearly held that, absent a statute so providing, the
courts do not have jurisdiction over cross-claims
against the United States. There, a statute (the Act
of March 3, 1797, formerly codified at 28 U.S.C.
(1940 ed.) 774, now codified at 28 U.S.C. 2406) al-
lowed cross-claims, but only up to the amount of the
government’s claim. In a companion case to Shaw,
United States v. United States Fidelity & Guaranty
Co., supra, no statute authorized the cross-claim
(against an Indian Tribe that enjoyed immunity com-
parable to that of the United States), and the Court
accordingly held that the cross-claim could not be
maintained. Some years earlier, the Court explained
in Nassau Smelting & Refining Works, Ltd. v.
United States, 266 U.S. 101, 106 (1924), that:
The objection to a suit against the United States
is fundamental, whether it be in the form of an
original action or a set-off or a counterclaim.
Jurisdiction in either case does not exist unless
there is specific congressional authority for it.
See also Illinois Central R.R. v. State Public Utilities
Commission, 245 U.S. 493, 504-505 (1918).
In the present case, there is no statute authorizing
respondents’ counterclaim. Section 2406 of Title 28,
as interpreted by the Court in Shaw, limits cross-
improvements as a prerequisite to judgment quieting title
itself is a clearcut ruling that controls the further conduct of
this case. As such, it warrants review by this Court now. See,
e.g., Larson V. Domestic & Foreign Commerce Corp., 387 U.8.
682, 685 n.3 (1949); Land v. Dollar, 380 U.S. 781, 784 n.2
(1947).
11
claims to the amount of the government’s claim. But
the government sought no money judgment, having
eschewed any demand for trespass damages or mesne
profits. Thus, respondents do not (and could not)
contend that they fall within the scope of 28 U.S.C.
2406.’
b. As the district court recognized (App. F, infra,
72a-73a), in the absence of statutory authorization
which is here lacking, respondents could recover on a
counterclaim against the government only by assert-
ing a theory of recoupment arising out of the same
transaction as the claim of the United States, and
only if the counterclaim did not seek relief in excess
of, or different in kind from, that sought by the
United States. This apparent exception is permitted
because a counterclaim based on recoupment is in
reality a defense to the government’s claim for relief,
rather than a separate, unconsented suit against the
sovereign. Accordingly, since the ultimate goal of
awarding damages in a trespass action is to make the
plaintiff whole, a defendant who in good faith has
increased the value of the premises may offset the
value of the improvements against the damages or
the mesne profits sought. The claim for improve-
ments in the nature of recoupment would be, in a
trespass action, a defense to the claim for damages,
* Clearly, the Nebraska statute cited by respondents (see
pages 6-7 & note 6, supra) cannot defeat the sovereign im-
munity of the United States. The court of appeals did not
rely on that statute, and even respondents did not contend that
it is actually controlling. Instead, they argued only that a
court of equity should look to the state statute in the exercise
See App. F, infra, T5a. As the district
court recognized (id. at 76a), that argument is foreclosed by
12
and the courts have long recognized that in such cases
an offset may be asserted without infringing on the
doctrine of sovereign immunity. See, e.g., Bull v.
United States, 295 U.S. 247 (1935); Oneida Indian
Nation v. County of Oneida, Nos. 82-7436, 82-7486 &
82-7526 (2d Cir. Sept. 29, 1983), slip op. 6744-6746.
In this quiet title action, however, the fact that re-
spondents may have improved the land is not a de-
fense to the relief sought by the United States, and
thus they cannot assert a counterclaim for improve-
ments under a theory of recoupment.
c. Notwithstanding these well-settled limitations on
counterclaims against the United States, the court of
appeals professed to avoid the bar of sovereign im-
munity by asserting that respondents’ counterclaim
for improvements is not really a counterclaim at all
but is instead “an element of the government’s own
claim, a condition precedent to the right of the United
States to recover * * *” (App. A, infra, 22a-23a).
The court then invoked the oft-repeated maxim that
one seeking equity must do equity and cited a number
of cases that allegedly support the application of that
doctrine to the United States (id. at 22a).
In fact, however, the cases were wrongly relied upon.
One of this Court’s decisions cited by the court of
appeals (App. A, infra, 22a) actually supports pre-
cisely the result for which we argue. In Pan Ameri-
can Petroleum & Transport Co. v. United States, 273
U.S. 456 (1927), the United States sought the can-
cellation of contracts and leases obtained by fraud
and bribery arising out of the Teapot Dome scandal.
It obtained that relief in the district court was
also ordered to pay the defendants the value of con-
struction work performed under the contracts, fuel
13
oil furnished to the Navy at Pearl Harbor, and the
cost of drilling and operating oil wells. This Court
unequivocally rejected the defendants’ counterclaims.
Although the Court noted that “[t]he general prin-
ciples of equity are applicable in a suit by the United
States to secure the cancellation of a conveyance or
the rescission of a contract,” the Court held that
those principles “will not be applied to frustrate
the purpose of its laws or to thwart public policy.”
273 U.S. at 506. The Court went on to distinguish
the United States from a private litigant because the
public policy of vindicating the integrity of the petro-
leum reserves transcended the financial aspects of the
litigation.”
1° The court of appeals cited a number of other cases (App.
A, infra, 22a), all of which contain general language to the
effect that the United States, when seeking equity, is as bound
to do equity as a private suitor. But, as with Pan American
Petroleum & Transport Co., supra, the cited cases either do
not reach the result reached by the court of appeals here, or
they involve entirely different factual circumstances.
United States vy. Detroit Timber & Lumber Co., 200 U.S.
321 (1927), involved a factual situation totally distinct from
the present case. There, the United States recovered, from a
person who had wrongfully sold timber on federal lands, both
the land in question and the money received for the sale of the
timber. The United States then sought to recover from Detroit
Timber & Lumber Co., a good faith purchaser of the timber,
the money paid to the wrongdoer. This Court refused to
countenance such a double recovery by the United States,
noting that “[t]he Government has every dollar which it
would have received in case of a perfectly valid entry, and has
also recovered the land. Surely it is not just for it to ask
further payment * * *.” Jd. at 340.
Many of the lower court cases cited by the court of appeals
correctly hold that the cour’s lack jurisdiction over counter-
claims against the United States. See, e.g., United States Vv.
14
In support of its holding in Pan American Petro-
leum & Transport Co., the Court cited Heckman v.
United States, 224 U.S. 413 (1912), a suit brought
by the United States to cancel conveyances of allotted
Indian lands on the ground that the conveyances were
made in violation of the restrictions on the Indians’
power of alienation. The Court there refused to order
return of the purchase price as a condition precedent
to cancellation, reasoning that any such requirement
would frustrate Congress’s policy of protecting the
Indians. In the present case, the United States
brought suit to vindicate that same policy, and there
is no reason why the government’s right to relief
should be conditioned upon paying for improvements
that neither it nor the Indians asked to be made.
Moreover, federal courts historically have attached
special significance to claims for Indian title. They
have acknowledged that such suits are often brought
Second National Bank of North Miami, 502 F.2d 535, 548,
549 (5th Cir. 1974), cert. denied, 421 U.S. 912 (1975); Sierra
Club v. Hickel, 467 F.2d 1048, 1052 (6th Cir. 1972), cert.
denied, 411 U.S. 920 (1973); Ehrlich v. United States, 252
F.2d 772 (5th Cir. 1958). The court of appeals in the present
case cited the dissenting opinion in Ehrlich, apparently by
mistake (see App. A, infra, 22a).
Other cases cited by the court of appeals fall in the category
of recoupment actions, in which the claimed off-set arose di-
rectly out of the same transaction that formed the basis for
the government’s claim. See, e.g., Lacy v. United States, 216
F.2d 223, 225-226 (5th Cir. 1954). Finally, the court cited
cases involving claims by the government for specific perform-
ance of a contract, in which the courts held that to be entitled
to such relief the government must itself perform its obliga-
tions under the contract. See, e.g., United States v. Bedford
Associates, 618 F.2d 904, 919 (2d Cir. 1980); Jacobs v. United
States, 239 F.2d 459 (4th Cir. 1956), cert. denied, 353 U.S.
904 (1957).
15
belatedly because of the past inability of the Indian
people to defend their lands. Accordingly, they have
ruled that state statutes of limitations do not bar
such claims (wert v. Bluejacket, 259 U.S. 129, 137-
138 (1922); Capitan Grande Band of Mission In-
dians vy. Helix Irrigation District, 514 F.2d 465 (9th
Cir.), cert. denied, 423 U.S. 874 (1975)); that com-
mon law rules of pleading do not oust federal court
jurisdiction (Oneida Indian Nation v. County of
Oneida, 414 U.S. 661 (1974)); and that the federal
common law of laches cannot be applied to Indian
title claims (Oneida Indian Nation v. New York, 691
F.2d 1070, 1084 (2d Cir. 1982)). The court of ap-
peals’ decision is contrary to the underlying policy
that permits the assertion of these claims without
regard to rules ordinarily applicable in private liti-
gation.
In any event, the court’s assumption that it must
order reimbursement for improvements in order to
“do equity” (App. A, infra, 21a) is incorrect. Re-
spondents have been wrongfully in possession of In-
dian lands for many years, enjoying the use of the
lands together with the profits from the produce
thereof. Yet the United States has not sought com-
pensation for rents and profits. Equity surely does
not demand that respondents recover for whatever
made their wrongful tenure more comfortable or their
gain the greater. Cf. United States v. Louisiana, 446
U.S. 253, 266-272 & n.4 (1980).
2. The court of appeals’ decision threatens to have
a serious adverse impact on the administration of In-
dian affairs. Despite the fact that only Congress has
the authority to divest an Indian tribe of its prop-
erty rights (25 U.S.C. 177), the net effect of the de-
cision is to condition the quieting of title on payment
for improvements. As a practical matter, therefore,
16
the court of appeals’ decision will require the gov-
ernment to appraise the value of improvements made
by trespassers on Indian lands before making a deci-
sion to sue to regain possession of the lands for the
rightful Indian owners."* Conceivably, the govern-
ment could find that the United States’ risk of mone-
tary liability in the event it prevailed in a quiet title
action would outweigh the appraised value of the un-
improved estate; consequently, budgetary constraints
could compel a decision not to assist the dispossessed
Indian landowners. The Indians may in turn sue to
compel the United States to represent them in its
capacity as their trustee, or they may seek damages
in the United States Claims Court for a breach of
trust in failing to protect their property interests.
While prosecutorial discretion could be advanced as
a defense to such suits, our experience has been that
this type of litigation is not without risks. See, e.g.,
Joint Tribal Council of the Passamaquoddy Tribe v.
Morton, 528 F.2d 370 (1st Cir. 1975) ; Covelo Indian
Community v. Watt, 551 F. Supp. 366 (D.D.C. 1982),
vacated as moot, No. 82-2377 (D.C. Cir. Feb. 1,
1983).
The prospects of such dilemmas are quite real and
potentially enormous. Pursuant to Sections 3 and 4 of
the Indian Claims Limitation Act of 1982, Pub. L.
No. 97-394, 96 Stat. 1977-1978, the Secretary of the In-
terior was required to publish in the Federal Register
two lists of potential Indian damage claims subject
to the statute of limitations for causes of action
brought by the United States (28 U.S.C. 2415). On
" The reasoning of the court of appeals would seem to apply
with equal force to suits brought by the United States to
secure possession of public lands occupied by trespassers. As
explained below, however, the adverse effects of the decision
will have their most serious impact in Indian cases.
17
March 31, 1983 (48 Fed. Reg. 13698), and November
7, 1983 (48 Fed. Reg. 51204), over 38,000 potential
claims were listed, half of which involve claims of
title not subject to the statute of limitations but
which provide the underlying basis for a claim of
trespass damages. Section 5 of the Act, 96 Stat.
1978, requires the Secretary to prepare reports to
the Indians on all listed claims that are rejected for
litigation, explaining the basis for the decision not
to bring suit. While a substantial percentage of the
listed claims have little legal merit and are not likely
to be litigated by the United States, there is still a
danger that otherwise meritorious title claims will
have to be rejected on the ground that the govern-
ment could be required to pay for the value of the
trespassers’ improvements.
The Secretary’s decision in such matters will no
doubt be challenged by some Indian claimants in liti-
gation. Other Indian claimants may choose to file
their own actions against the trespassers, seeking to
quiet title in the United States for their benefit. The
defendants may in turn seek to implead the United
States to require that the government pay for the
value of their improvements in the event the Indian
claimants prevail. In the past, the United States has
been successful in resisting such third-party com-
plaints on the ground of sovereign immunity, but
that defense has now been rejected by the court of
appeals in the case of counterclaims. Because the
courts have often held that Indian litigants stand
in the shoes of their trustee, the United States (e.g.,
Moe v. Confederated Salish & Kootenai Tribes, 425
U.S. 463, 474-475 (1976)), they may extend the
Eighth Circuit’s rationale to third-party complaints
as well.
Another likely adverse result of the Eighth Cir-
cuit’s ruling is that when the government sues to
18
regain possession of improved Indian land from tres-
passers, it will be compelled to seek mesne profits or
trespass damages to offset a possible counterclaim for
the value of improvements. In the past, the govern-
ment has often declined to seek such monetary relief
because it seemed inequitable; the instant case is one
example of this policy. But the court of appeals’ de-
cision will likely force the United States to assert all
possible claims in order to protect the public fisc to
the maximum extent possible. It seems unlikely that
such a change in policy would be in the best interests
of any party to Indian title litigation.
In sum, the court of appeals’ decision is wrong as
a matter of law, and it could adversely affect literally
thousands of Indian claims that Congress has di-
rected the Secretary of the Interior to evaluate for
litigation. Review by this Court is therefore appro-
priate.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
Rex E. LEE
Solicitor General
F. HENRY HABICHT, II
Assistant Attorney General
Louis F, CLAIBORNE
Deputy Solicitor General
KATHRYN A. OBERLY
Assistant to the Solicitor General
CLAIRE L. McGuIRE
Davi C. SHILTON
Attorneys
DECEMBER 1983
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Nos. 81-2350, 81-2351 and 81-2384
\ No. 81-2350
UNITED STATES OF AMERICA, APPELLEE
v.
Roy TIBBALS WILSON, ET AL.,
STATE OF IOWA, APPELLANT
OMAHA INDIAN TRIBE, ETC., APPELLEE
Vv.
HAROLD JACKSON, ET AL., STATE OF IOWA and
IOWA STATE CONSERVATION COMMISSION,
APPELLANTS
OMAHA INDIAN TRIBE, APPELLEE
Vv.
AGRICULTURAL & INDUSTRIAL INVESTMENT CO., ET AL.,
STATE OF IOWA and IOWA STATE CONSERVATION
COMMISSION, APPELLANTS.
No. 81-2351
UNITED STATES OF AMERICA, APPELLEE
Vv.
Roy TIBBALS WILSON, ET AL., APPELLANTS
OMAHA INDIAN TRIBE, ETC., APPELLEE
Vv.
HAROLD JACKSON, ET AL., APPELLANTS
OMAHA INDIAN TRIBE, APPELLEE
Vv.
AGRICULTURAL & INDUSTRIAL
INVESTMENT COMPANY, ET AL.
No. 81-2384
UNITED STATES OF AMERICA, APPELLEE
Vv.
Roy TIBBALS WILSON, ET AL.,
RGP, INc. and OTIS PETERSON, APPELLANTS
OMAHA INDIAN TRIBE, ETC., APPELLEE
Vv.
HAROLD JACKSON, ET AL.,
OTIS PETERSON, APPELLANTS
OMAHA INDIAN TRIBE, APPELLEE
Vv.
AGRICULTURAL & INDUSTRIAL INVESTMENT CO., ET AL.,
RGP, !Nc. and OTIS PETERSON, APPELLANTS
8a
Appeal from the United States District Court
for the Northern District of Iowa
Submitted: May 18, 1982
Filed: October 26, 1982
BEFORE LAY, Chief Judge, HENLEY, Senior Cir-
cuit Judge, and ARNOLD, Circuit Judge.
LAY, Chief Judge.
The present controversy grows out of the overall
litigation affecting ownership of 2900 acres of land
contiguous to the Missouri River formerly occupied
by the Omaha Indian Tribe (Tribe) as part of the
Omaha Indian Reservation. The land is within an
area called the Barrett Survey; it was reserved by
the Tribe according to the terms of an 1854 Treaty
whereby the Tribe ceded its lands west of the Mis-
souri River to the United States. Treaty of March 16,
1854, art. 1, 10 Stat. 1043. The eastern boundary of
the Reservation was the Missouri River. Commencing
in 1879 the course of the erratic and uncontrolled
river began changing in the Barrett Survey area,
giving rise to this boundary dispute. The detailed facts
of the dispute are fully set out in our earlier deci-
sions. Omaha Indian Tribe v. Wilson, 575 F.2d 620
(8th Cir. 1978) (hereinafter referred to as Omaha
4a
I), vacated and remanded, 442 U.S. 653 (1979), and
Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th
Cir.) (hereinafter referred to as Omaha II), cert.
denied, 449 U.S. 825 (1980).
In Omaha II, we ordered title quieted in the Tribe
and the United States as trustee for the Tribe to ap-
proximately 2200 of the 2900 acres involved in the
controversy. The 2200 acres constituted reservation
land held in trust by the United States, and claimed
by individual landowners. Central to our holding was
the applicability of 25 U.S.C. § 194,’ which operated
to shift the burden of proof from the Tribe and the
United States to the individual landowners with re-
spect to the trust lands. Left undecided in both
Omaha I and Omaha II were the Tribe’s claims to
nontrust lands in the possession of the individual land-
owners until 1975 and to lands in the possession of
the State of Iowa until 1975.
The State of Iowa acquired the land now in con-
troversy by quitclaim deeds and by its sovereign own-
ership of islands and abandoned river channels. In
Omaha IT, following the earlier mandate of the United
States Supreme Court, we remanded the claim re-
garding the State of Iowa’s land because section 194
was deemed inapplicable to a sovereign state. 614
F.2d at 1161. The remainder of the land in contro-
versy was patented in fee by the United States prior
to 1940 and thus was not part of the trust lands. In
125 U.S.C. § 194 reads:
In all trials about the right 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 pre-
sumption of title in himself from the fact of previous
possession or ownership.
5a
Omaha I we noted the United States government had
excepted from its complaint any claim to some 400
acres within the Barrett Survey that may have been
allotted to individual Indians and subsequently pat-
ented to non-Indians. The Tribe’s claim to this land
was remanded to the district court at that time. 575
F.2d at 651 n.70.
In the district court’s latest ruling,’ title to the en-
tire 2900 acres was quieted in the Omaha Indian
Tribe and the United States as trustee for the Tribe.
Appeal from this judgment has been taken by the
State of Iowa and individual landowners asserting
claims to some 700 acres of the land. The basic dis-
pute on this appeal is the meaning of the Supreme
Court’s opinion as well as this court’s earlier remands
and directions.
In review of Omaha I the Supreme Court found
that this court’s application of section 194, which
placed the burden of proof on the landowners rather
than on the Tribe, was correct. On this basis in
Omaha I and Omaha II we found under applicable
federa! law that the landowners failed to meet their
burden of proof that the Missouri River movements
at the critical times in issue had produced accretive
lands to the Iowa bank of the Missouri River. We
held the evidence of the landowners was speculative
and conjectural regarding whether the river move-
ment between 1879 and 1923 had changed by avulsive
movements or by slow and imperceptible deposits of
accretion to the Iowa bank as claimed by the land-
owners. On the basis of our initial conclusion that
the Tribe had established legal title to the trust lands
2 United States v. Wilson, 528 F. Supp. 874 (N.D. Iowa
1981).
6a
prior to the movements of the river in question, and
had therefore established presumptive title under sec-
tion 194, Omaha I, 575 F.2d at 631, we directed that
title be quieted in the Tribe and the United States as
trustee for the Tribe when the landowners failed to
carry their burden of proof.
On remand of the Tribe’s claims to the fee-patent
lands and the State of lowa’s lands, the district court
held that title to the entire 2900 acres, including the
fee-patent lands and those claimed by the state, should
be quieted in the Tribe and the United States as trus-
tee. The district court, albeit reluctantly,’ reasoned
the “law of the case” (Omaha II) required quieting
title to the trust land in the Tribe; that subsequent to
1923 the river completely eroded and washed away
all the fee-patent lands and State of Iowa lands,
and that thereafter, when the river moved west again
new land accreted to the trust land quieted in the
Tribe in Omaha II; and further that the Tribe had
proven the “new” land claimed by the State and the
individual landowners had accreted to the Tribe’s res-
ervation land. The court reasoned that adverse pos-
session and statutes of limitations were not valid af-
firmative defenses against the Tribe and the United
States as trustee.
I. Tribe’s Claim to State of Iowa Lands.
Of the various issues raised on this appeal, we need
focus only on the question of the burden of proof and
the meaning of Omaha IJ. In the typical quiet title
action, where a protective statute such as section 194
* The district court, feeling the result inequitable, invited
further constitutional attack on section 194. Cf. Omaha I,
575 F.2d at 631 n.18 (noting that constitutional attack is
answered by Morton v. Mancari, 417 U.S. 585, 554-55 (1974) ).
Ta
is not operative, the burden of proof is on the claim-
ant, which here is the Tribe. The Supreme Court spe-
cifically ruled that the State as a sovereign was not
affected by section 194 and that as to the original
claim made by the Tribe, affecting state lands, the
burden of proof remained on the Tribe.‘
The fundamental question relates to the scope of
that burden of proof. We have previously stated that
the party bearing the burden of proof had the task of
showing “whether the thalweg moved by accretion or
avulsion in the critical time periods involved,” Omaha
I, 575 F.2d at 650; see Omaha II, 614 F.2d at 1156,
1161, and that the critical time periods were from
1879 to 1923, and post-1923. Here the Tribe claims
land in the western portion of the Barrett Survey
area. Plate I taken from the Tribe’s brief depicts the
areas in controversy.®
The district court in applying the law of Omaha II
found that this court determined that the Tribe was
the rightful owner of 2200 acres of the former res-
ervation land. We did so, however, solely by reason
that the landowners failed to carry their burden of
proof. On this basis, we ruled that as against the
individual defendants seeking to retain the trust lands
under section 194 presumptive title remained in the
Tribe.
It is tempting to follow the district court’s line of
reasoning and assume that these western lands ac-
creted to the trust land and thus belong to the Tribe.
‘Contrary to the government’s suggestion, this court, as
well as the Supreme Court, clearly held that section 194 placed
the burden of persuasion on the landowners to show their title
by reason of accretion to the Iowa bank.
5’ The legend is that of Tribe’s counsel and is not intended
to reflect the court’s ruling.
Van
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70 THE STATE
ma 8
However, we find that reasoning misleading because
it allows the Tribe to bootstrap section 194 in assert-
ing its claim against the state.
Our holding in Omaha II established the law of the
case only between the litigants involved, to wit, the
private landowners and the Tribe. Our holding could
have no effect on the ongoing and simultaneous dis-
pute between the State of Iowa and the Tribe because
the Supreme Court held that the State was not a white
person within the meaning of section 194. The State
has from the commencement of the litigation denied
the Tribe’s assertive ownership to the entire land
area within the Barrett Survey. Under the Supreme
Court mandate, it is clear that for the Tribe to be suc-
cessful against the State the entire controversy must
9a
be viewed as if section 194 had never been passed.®
Thus, with regard to State lands the Tribe has the
burden of proof to show that the earlier river move-
ments between 1879 and 1923 were avulsive changes,
thus establishing no change of title in trust lands.
That we contemplated this burden of proof in
Omaha II is indicated by the following passage, which
we now realize was less than clearly stated:
The record is not clear as to the time period and
as to the specific land involved, in the Tribe’s
claim that land allegedly owned by the State was
cut away from the reservation by avulsion. Un-
der the circumstances, we feel the Tribe’s case
against the State should be separately remanded,
and an opportunity given to... point out specific
evidence relied upon to show avulsion on the par-
ticular land claimed by the State.
614 F.2d at 1161 (footnote omitted).
On the basis of the above reasoning, we again re-
mand to the district court the question of ownership
of the land claimed both by the Tribe and by the
State. The district court must evaluate the record as
to the Tribe’s claim to the land previously possessed
by the State by placing the burden of proof on the
Tribe to establish that the critical westward river
movements from 1879 to 1923 were avulsive.’
* Our original holding against all the landowners, including
the State of Iowa, was premised on the fact that both the
State and the private landowners had failed to carry their
burden of proof under section 194. This was error, since, as
the Supreme Court ruled, section 194 does not apply to the
Tribe’s claim against the State.
7 Although we indicated the landowners’ proof was specu-
lative whether the river moved by avulsion or accretion in
10a
II. Fee-Patented Lands.
We now discuss the claim of the other landowners
who, prior to the district court’s issuance of the pre-
liminary injunction, asserted title by adverse posses-
sion to lands once within the reservation, but di-
vested by the United States and the Tribe before the
river movement began in 1879.°
The district court found that the landowners can-
not claim this land under the guise that it is fee-
patented land. The court found the fee-patented land
was completely washed away by the post-1923 west-
ward movement of the river. We deem this fact not
both Omaha I and Omaha II, we did not assess the evidence
in terms of whether the Tribe carried its burden of proof
that there was avulsive movement to sustain the claim of the
Tribe. This was not the issue. We acknowledge the district
court originally held that the Tribe did not carry its overall
burden that the river movements were by avulsion. We va-
cated that ruling because it erred in making the proper assess-
ment of where the burden actually lay.
For the Tribe to be successful against the State, it must
show the land east of the nonobliterated line (see Plate I) be-
longs to the Tribe by reason of the Tribe carrying its burden
of proof that the river movements were by avulsion. This
court’s ruling that title was quieted in the Tribe affected only
the claim to the trust lands east of the nonobliterated line.
Insofar as the State’s lands are involved in the same litigation
our holding did not affect the State of Iowa.
* The record is not clear as to which lands within the dis-
puted 700 acres were divested by the Indian Tribe and the
government and which were not. The Tribe contends some
of the area was allotted land relinquished back to the Tribe.
See Plate I. Assuming the Tribe can establish that land was
relinquished back to the Tribe, if the land is not otherwise
claimed by the State of Iowa, title to such relinquished land
should be quieted in the Tribe, as trust land, as we ruled in
Omaha II.
lla
significant. It is the area of land now occupied by. the
landowners that is important. See Wilson v. Omaha
Indian Tribe, 442 U.S. at 668. This area of land is
the same location where allotted lands existed because
the Tribe and the United States divested the land
from the reservation. Thus, the real significance is
that this 400 acre area now claimed by the landown-
ers, acknowledged to involve a separate claim in
Omaha I, 575 F.2d at 651 n.70, is not trust land. It
is not land in which the Tribe can claim that it is en-
titled to presumptive title by reason of section 194.
Thus, as in the controversy involving the State, we
deem it important that the Tribe must carry its bur-
den of proof of rightful ownership as to this land.
Because section 194 is not applicable to these 400
acres, it is clear that the burden of proof does not rest
on the landowners.
The district court reasons, however, that because
our mandate in Omaha II ordered it to quiet title to
the 2200 acres in the Tribe, the law of the case is that
the Tribe owned the trust land, and because it is un-
disputed that the 400 acres of fee-patented land ac-
creted to the trust land by the post-1923 river move-
ment, the Tribe is entitled to judgment. We find this
reasoning is in error. The law of the case (Omaha I
and Omaha II) is that the landowners failed to sus-
tain the burden of proof placed on them pursuant to
section 194, and therefore, as to the trust land, the
Tribe was awarded presumptive title against those
landowners. We did not hold that the Tribe estab-
lished that the original boundary to the reservation
remained unchanged by reason of avulsive river move-
ments from 1879 to 1923, thereby establishing con-
tinuing ownership of the Tribe in the trust land. We
deem such proof essential for the Tribe and the United
12a
States as trustee to establish their claim to the non-
trust lands.®
The State and the private landowners have never
disputed that the land west of the nonobliterated line
(Plate I) was accretion land that attached to land to
the east. Their contention has been that most of this
land accreted to the Iowa bank since the reservation
lands had been completely eroded away. Both the
State of Iowa and the individual owners contend that
the Tribe, to meet its burden of proof regarding the
tracts of land now in controversy, must prove that
the river moved westward over the eastern Barrett
Survey land between 1867 and 1923 by avulsion; in
other words, they argue the Tribe must establish af-
firmatively how the river moved during the entire pe-
riod of time relevant to this lawsuit. As indicated,
we agree.
This court’s Omaha II decision established only that
the private defendants had failed to meet their bur-
den of proving how the river moved in the critical
time periods. This court recognized that the neces-
sary result of our decision that the landowners had
failed to meet their burden was that when the dis-
trict court entered final judgment, it would ultimately
be required, by reason of section 194, to enter a de-
cree quieting title to the trust land in the Tribe and
the United States as trustee for the Tribe.”
*It is appropriate to mention here the off-quoted [sic]
maxim that “in an action to quiet title the plaintiffs must rely
upon the strength of their own title and not upon the weakness
of that of the defendants.” Dudley v. Meyers, 422 F.2d 1389,
1394-95 (3d Cir. 1970); see also Rasmussen Drilling, Inc. v.
Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1158 (10th Cir.),
cert. denied, 489 U.S. 862 (1978).
10 The district court did not enter a judgment quieting title
to the trust lands claimed by the private defendants in the
13a
However, this court’s finding that the landowners
failed to meet their burden of proof, and our recogni-
tion of the effect of that finding, did not establish
that the Tribe had or would have carried the burden
of proof showing that the original trust boundaries
had not been altered. The latter holding would be an
essential predicate for the Tribe to prove its claim to
nontrust lands.
As we have discussed earlier, in regard to the lands
claimed by the State, to hold otherwise would in ef-
fect give the Tribe the benefit of section 194 with
respect to its claims to the State lands and the fee-
patented lands, rather than only with respect to its
claims to trust lands held by the private defendants.
This result would clearly be unsupportable, and was
not intended by our mandate in Omaha II. The
Tribe cannot do indirectly what it cannot do airectly.
We therefore remand this case to allow the district
court to determine whether the Tribe has met its bur-
den of proof as defined herein. If it holds that the
Tribe failed to meet its burden, it must then deter-
mine whether the private defendants and the State of
Iowa are entitled to have title to the tracts of land in
controversy quieted in them.”
Tribe and the United States until it entered a final judgment
disposing of all claims of all parties to lands within the
original Barrett Survey.
11 Defendants also appeal the district court’s denial of their
request for the value of improvements they made to Barrett
Survey land during their possession of it. It is our under-
standing that the improvements were made solely on the par-
ticvlar tracts of land in controversy here, and not on the
trust lands with respect to which this court has already indi-
cated title must be quieted in the Tribe and the United States.
If we are correct, then clearly we need not rule on this issue
in view of our remand.
l4a
We recognize that requiring the Tribe to prove its
underlying entitlement to the eastern trust lands to
establish its right to the western portion of the Bar-
rett Survey area may seem anomalous in view of
Omaha II, in which this court has already concluded
that title must be quieted in the Tribe to the eastern
trust lands. This result is reached, however, as we
pointed out above, because of the partial application
of section 194 to this case. To hold otherwise would
allow the Tribe to apply section 194 against the own-
ers of the land held in fee and against the State of
Iowa and would be inconsistent with our earlier man-
date.
We also recognize that, because of the passage of
time involved, the party having the burden of proof
inevitably may face unsuperable barriers, and if the
district court finds this to be so, the end result will
be that the Tribe will prevail only as to the trust
lands formerly in the possession of the private de-
fendants, but not as to the remainder.
The judgment of the district court is reversed and
the cause remanded for proceedings consistent with
this opinion.
A true copy.
Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.
l5a
APPENDIX B
JUDGMENT
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
September Term, 1982
Filed: October 26, 1982
No. 81-2350
UNITED STATES, APPELLEE
v8.
Roy TIBBALS WILSON, ET AL.,
STATE OF IOWA, APPELLANT
OMAHA INDIAN TRIBE, ETC., APPELLEE
v8.
HAROLD JACKSON, ET AL.,
STATE OF IOWA, ET AL., APPELLANTS
OMAHA INDIAN TRIBE, APPELLEE
v8.
AGRICULTURAL & INDUSTRIAL INVESTMENT, ET AL.,
STATE OF IOWA, ET AL., APPELLANTS
l6a
No. 81-2351
UNITED STATES OF AMERICA, APPELLEE
v8.
Roy TIBBALS WILSON, ET AL., APPELLANTS
OMAHA INDIAN TRIBE, ETC., APPELLEE
vs.
HAROLD JACKSON, ET AL., APPELLANTS
OMAHA INDIAN TRIs®, APPELLEE
vs.
AGRICULTURAL & INDUSTRIAL
INVESTMENT COMPANY, ET AL.
No. 81-2384
UNITED STATES OF AMERICA, APPELLEE
vs.
Roy TIBBALS WILSON, ET AL.,
INC., ET AL., APPELLANTS
OMAHA INDIAN TRIBE, ETC., APPELLEE
v8.
HAROLD JACKSON, ET AL.,
OTIS PETERSON, APPELLANT
OMAHA INDIAN TRIBE, APPELLEE
v8.
AGRICULTURAL & INDUSTRIAL INVESTMENT CO., ET AL.,
RGP, INC., ET AL., APPELLANTS
17a
JUDGMENT
These appeals from the United States District
Court for the Northern District of Iowa were con-
sidered on a designated record from the United States
District Court and on briefs of the respective parties
and were argued by counsel.
After consideration, it is ordered and adjudged that
the judgment of the said District Court in these
causes be, and the same is hereby, reversed and re-
manded to the said District Court for proceedings
consistent with the opinion of this Court.
October 26, 1982
A true copy:
Attest:
/s/ Robert D. St. Vrain
Clerk, U.S. Court of Appeals, Eighth Circuit.
18a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Nos. 81-2350, 81-2351 and 81-2384
No. 81-2350
UNITED STATES OF AMERICA, APPELLEE
Vv.
JOHN R. WILSON, Personal Representative of the
Estate of Roy T. Wilson, deceased, STATE OF IOWA,
APPELLANT
OMAHA INDIAN TRIBE, ETC., APPELLEE
Vv.
HAROLD JACKSON, ET AL., STATE OF IOWA and
IowA STATE CONSERVATION COMMISSION,
APPELLANTS
OMAHA INDIAN TRIBE, APPELLEE
Vv.
AGRICULTURAL & INDUSTRIAL INVESTMENT CO., ET AL.,
STATE OF IOWA and IOWA STATE CONSERVATION
COMMISSION, APPELLANTS
19a
No. 81-2351
UNITED STATES OF AMERICA, APPELLEE
Vv.
JOHN R. WILSON, Personal Representative of the
Estate of Roy T. Wilson, deceased, ET AL.,
APPELLANTS
OMAHA INDIAN TRIBE, ETC., APPELLEE
Vv.
HAROLD JACKSON, ET AL., APPELLANTS
OMAHA INDIAN TRIBE, APPELLEE
Vv.
AGRICULTURAL & INDUSTRIAL
INVESTMENT COMPANY, ET AL.
No. 81-2384
UNITED STATES OF AMERICA, APPELLEE
Vv.
JOHN R. WILSON, Personal Representative of the
Estate of Roy T. Wilson, deceased, ET AL.,
RGP, INC. and OTIS PETERSON, APPELLANTS
OMAHA INDIAN TRIBE, ETC., APPELLEE
Vv.
HAROLD JACKSON, ET AL.,
OTIS PETERSON, APPELLANTS
20a
OMAHA INDIAN TRIBE, APPELLEE
Vv.
AGRICULTURAL & INDUSTRIAL INVESTMENT CO., ET AL.,
RGP, INc. and OTIS PETERSON, APPELLANTS
Appeals from the United States District Court
for the Northern District of lowa
Upon Petition for Rehearing
Submitted: May 18, 1982
Filed: June 10, 1983
Before LAY, Chief Judge, HENLEY, Senior Cir-
cuit Judge, and ARNOLD, Circuit Judge.
Per Curiam.
Both sides have filed petitions for rehearing. Upon
full consideration of the petitions and supplemental
briefs, we adhere to our original opinio t delete
footnote 11. We remand the case to the district court
for further proceedings consistent with our modified
opinion.
In their briefs on appeal, the landowners had
urged that the district court erred in refusing to re-
quire the United States to reimburse them for the
2la
value of improvements made upon land within the
Barrett Survey area during the time for the land-
owners’ possession. In footnote 11, we stated:
It is our understanding that the improvements
‘were made solely on the particular tracts of
land in controversy here, and not on the trust
lands with respect to which this court has al-
ready indicated title must be quieted in the Tribe
and the United States. If we are correct, then
clearly we need not rule on this issue in view of
our remand.
In their petitions for rehearing, the landowners in-
formed the court that improvements had been made
on both trust and non-trust lands. Therefore, we will
consider the improvements issue.
The landowners claimed in the district court that
the obligation of the United States to reimburse them
for the value of improvements was a condition prece-
dent to its right to have title quieted. The district
court rejected the landowners’ argument, characteriz-
ing their claim as a counterclaim barred by the sov-
ereign immunity of the United States. See United
States v. Wilson, 523 F. Supp. 874, 900-902 (W.D.
Ia. 1981).
In a quiet title action where the plaintiff seeks the
equitable remedy of a decree quieting title in him-
self, it is generally accepted that the plaintiff must
do equity by reimbursing the defendant for the value
of improvements as a condition precedent to his right
to relief. See, e.g., Goode v. Gaines, 145 U.S. 141,
154-55 (1891) [where owner knew improvements
were being constructed and acquiesced to construc-
tion]; McAndrews vy. Belknap, 141 F.2d 111, 115
(6th Cir.), cert. denied, 323 U.S. 721 (1944); Pen-
22a
dergrass v. Massengill, 152 S.E.2d 657, (N.C. 1967) ;
Scott v. Nygaard, 405 P.2d 850, 851 (Or. 1965);
Simpson vy. Bostwick, 80 N.W.2d 339, 344 (Iowa
1957).
We see no reason why on the facts of this case the
United States should be excused from the application
of this equitable doctrine. It is well established that
the United States is subject to general principles of
equity when seeking an equitable remedy. Pan Amer-
ican Petroleum &: Transport Co. v. United States, 273
U.S. 456, 506 (1927) ; United States v. Detroit Tim-
ber & Lumber Co., 200 U.S. 321, 339 (1906) ; United
States v. Second National Bank of North Miami, 502
F.2d 535, 548 (5th Cir. 1974) ; Sierra Club v. Hickel,
467 F.2d 1048, 1052 (6th Cir. 1972), cert. denied,
411 U.S. 920 (1973).
We hold, as did the court in United States v. Bed-
ford Associates, 618 F.2d 904, 920 (2d Cir. 1980),
that “when the government invokes the equity powers
of the district court, that court has the power to
withhold the relief requested unless the government
performs the conditions precedent to its claim.” This
principle is further supported by decisions of the
Fourth, Fifth and Ninth Circuits. See United States
v. Desert Gold Mining Co., 448 F.2d 1230, 1231 (9th
Cir. 1971); Ehrlich v. United States, 252 F.2d 772,
776 (5th Cir. 1958) ; Lacy v. United States, 216 F.2d
228, 225 (5th Cir. 1954); Jacobs v. United States,
239 F.2d 459, 461-62 (4th Cir. 1956), cert. denied,
353 U.S. 904 (1957); Martin v. United States, 240
F.2d 326 (4th Cir. 1957), on remand, 162 F. Supp.
932 (M.D. N.C. 1958) aff'd in part, rev'd in part,
270 F.2d 65 (4th Cir. 1959).
Because the duty to pay for the value of improve-
ments is an element of the government’s own claim, a
23a
condition precedent to the right of the United States
to recover, we find the doctrine of sovereign immunity
is inapplicable. The duty, of the United States to pay
for the value of improvements, upon a proper show-
ing of entitlement by the landowners, does not arise
as a result of finding adverse to it on a counterclaim
by the defendants.
We therefore hold that the district court erred in
characterizing the landowner’s claim as a counter-
claim barred by the doctrine of sovereign immunity,
and remand for the district court to determine
whether, under the applicable principles of law, the
United States should be ordered to reimburse the
landowners for the value of improvements and if so,
in what amounts.’
A true copy.
Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.
1It is “well settled that the court may finally determine as
between the parties in a quiet title action all of the conflicting
claims regarding any estate or interest in the property.”
Henidershott v. Shipman, 231 P.2d 481, 483 (Cal. 1951). Cf.
Bjornstad v. Fish, 87 N.W.2d 1, 8 (la. 1957). The United
States has heretofore made no claim for recovery of rents
and profits. However, the Tribe brought an action for eject-
ment and for trespass damages, which was severed. We urge
the parties and the district court to consider consolidation of
all remaining claims arising out of the possession or lack of
possession of the Barrett Survey area during the period in
controversy, so that the claims may be resolved in the most
judicially efficient manner.
24a
APPENDIX D
JUDGMENT
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
September Term, 1982
No. 81-2350
UNITED STATES, APPELLEE
v8.
JOHN R. WILSON, Personal Representative of the
Estate of Roy T. Wilson, Deceased, APPELLANT
STATE OF IOWA
OMAHA INDIAN TRIBE, ETC., APPELLEE
v8.
HAROLD JACKSON, ET AL.
STATE OF IOWA and
IowA STATE CONSERVATION COMMISSION,
APPELLANTS
OMAHA INDIAN TRIBE, APPELLEE
v8.
AGRICULTURAL & INDUSTRIAL INVESTMENT CO., ET AL.,
STATE OF IOWA and
IowA STATE CONSERVATION COMMISSION,
; APPELLANTS
25a
No. 81-2351
UNITED STATES OF AMERICA, APPELLEE
v8. f
JOHN R. WILSON, Personal Representative of the
Estate of Roy T. Wilson, deceased, ET AL.,
APPELLANTS
OMAHA INDIAN TRIBE, ETC., APPELLEE
v8.
HAR.) JACKSON, ET AL., APPELLANTS
OMAHA INDIAN TRIBE, APPELLEE
v8.
AGRICULTURAL & INDUSTRIAL
INVESTMENT COMPANY, ET AL.
No. 81-2384
UNITED STATES OF AMERICA, APPELLEE
v8.
JOHN R. WILSON, Personal Representative of the
Estate of Roy T. Wilson, deceased, ET AL.,
RGP, INc. and OTIS PETERSON, APPELLANTS
OMAHA INDIAN TRIBE, ETC., APPELLEE
v8.
HAROLD JACKSON, ET AL.,
OTIS PETERSON, APPELLANT
26a
OMAHA INDIAN TRIBE, APPELLEE
v8.
AGRICULTURAL & INDUSTRIAL INVESTMENT CO., ET AL.,
RGP, INc. and OTIS PETERSON, APPELLANTS
[Filed Jun. 10, 1983]
These appeals from the United States District
Court for the Northern District of Iowa were con-
sidered on a designated record from the United States
District Court and on briefs of the respective parties
and were argued by counsel.
After consideration, it is ordered and adjudged
that the judgment of the said District Court in these
causes be, and the same is hereby, reversed and re-
manded to the said District Court for proceedings
consistent with the opinion of this Court as modified
June 10, 1983
[SEAL]
A True Copy
ATTEST
/s/ Robert D. St. Vrain
Clerk
U.S. Court of Appeals
Eighth Circuit
27a
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
September Term 1982
Nos. 81-2350/2351/2384
UNITED STATES OF AMERICA, ET AL., APPELLEES
v8.
JOHN R. WILSON, ETC., ET AL., APPELLANTS
Appeal from the United States District Court
for the Northern District of lowa
The Court, having considered appellee’s petition for
rehearing and suggestions for rehearing en bane and
being now fully advised in the premises, hereby or-
ders the petition for rehearing and suggestions for
rehearing en banc denied. Judge Ross took no part
in the consideration of the petition for rehearing en
banc.
August 11, 1983
28a
APPENDIX F
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
C 75-4024
UNITED STATES OF AMERICA, PLAINTIFF
v8.
Roy TIBBALS WILSON, ET AL., DEFENDANTS
C 75-4026
OMAHA INDIAN TRIBE, ETC., PLAINTIFFS
v8.
HAROLD JACKSON, ET AL., DEFENDANTS
C 75-4067
OMAHA INDIAN TRIBE, PLAINTIFF
v8.
AGRICULTURAL & INDUSTRIAL
INVESTMENT COMPANY, ET AL., DEFENDANTS
ORDER
In accordance with the Memorandum Opinion filed
this date in the above-entitled cases, it is hereby
ORDERED, ADJUDGED and DECREED:
29a
(1) Each and every one of this Court’s Findings
of Fact and Conclusions of Law are by this reference
made a part hereof.
(2) Pursuant to the mandate of the Eighth Circuit
Court of Appeals, and the Findings and Conclusions
filed by this Court, judgment will be entered in favor
of the Plaintiffs, Omaha Indian Tribe and United
States of America, as Trustee, quieting title in them
to the Barrett Survey land in controversy in these
cases claimed by them as against the Defendants,
RGP, Inc., Roy Tibbals Wilson, Charles E. Larkin,
State of Iowa, Harold M. Sorenson, and Travelers
Insurance Company, in respect to their several claims.
(8) Defendants motions for summary judgment
are denied. Additionally, Defendants’ prayers for
equitable relief by their claim for the value of im-
provements on Barrett Survey land are denied.
Dated this 8th day of September, 1981.
BY THE Court:
/s/ Andrew W. Bogue
Chief Judge
30a
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
September 4, 1981
Chambers of
ANDREW W. BOGUE
Chief Judge
Mr. William H. Veeder
Suite 920
818 18th Street, N.W.
Washington, D.C. 20006
Mr. Maurice B. Nieland
Mr. Lowell C. Kindig
Suite 300
Toy National Bank Bldg.
Sioux City, Iowa 51101
Mr. Edson Smith
Mr. Donald Buresh
Mr. Robert J. Becker
3535 Harney Street
Omaha, Nebraska 68131
Mr. Wiley Mayne
Mr. John Mayne
P. O. Box 566
Sioux City, IA 51102
Mr. Peter J. Peters
P. 0. Box 938
Council Bluffs, lowa 51501
Mr. Theodore T. Duffield
729 Insurance Exchange Bldg.
Des Moines, Iowa 50309
Assistant U.S. Attorney
P. O. Box 1188
Sioux City, Iowa 51102
Mr. James J. Clear
Department of Justice
Washington, D.C. 20530
Mr. Thomas Burke
Mr. Lyman L. Larsen
1900 First National Center
Omaha, NE 68102
Ms. Elizabeth M. Osenbaugh
Mr. Tom Miller
Mr. John Sarcone
Assistants Attorney General
Hoover Bldg., Second Floor
Des Moines, Iowa 50319
318 Federal Building
Rapid City, South Dakota 57701
Mr. D. Carlton Shull
Mr. George Madsen
1109 Badgerow Bldg.
Sioux City, Iowa 51101
Mr. Steven Carter
215 Benson Bldg.
Sioux City, Iowa 51101
Mr. Ronald Runge
436 Davidson Bldg.
Sioux City, Iowa 51101
Mr. Dewie Gaul
Mr. P. L. Nymann
883 Orpheum Electric Bldg.
Sioux City, Iowa 51101
Mr. Robert Eidsmoe
200 Home Federal Bldg.
Sioux City, Iowa 51101
Mr. Michael Jensen
Monona County Courthouse
610 Iowa Avenue
Onawa, Iowa 51040
Mr. Clark G. Redick
811 Main Street
Kansas City, Missouri 64141
Mr. Phillip Willson
801 Park Bldg.
Council Bluffs, Iowa 51501
Mr. Larry Fulton
1776 South Jackson
Suite 1000
Denver, CO 80210
Mr. Emmanuel S. Bikakis
840 Insurance Exchange Bldg.
Sioux City, Iowa
Mr. John North
Mr. Lee Hamann
300 Continental Bldg.
Omaha, NE 68102
8la
MEMORANDUM OPINION
Gentlemen and Ms. Osenbaugh:
The Eighth Circuit Court of Appeals remanded
these cases to this Court to determine the facts in
light of the principles and conclusions set forth in
both its second opinion, Omaha Indian Tribe v.
Wilson, 614 F.2d 1153 (8th Cir. 1980), and in the
opinion of the United States Supreme Court. Wilson
v. Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529
(1979). This Memorandum Opinion provides this
Court’s resolution of several issues of law and fact
remaining i» the consolidated Blackbird Bend-Barrett
Survey area cases.
I. FACTUAL BACKGROUND
These cases concern the ownership of approximately
2,900 acres of land on the east bank of the Missouri
River in Iowa. The parties seek to quiet title to the
land, which was affected by the movement of the
banks of the Missouri River over a period of nearly
eighty years. The history of this land dispute and
the discussion of the early movement of the Missouri
River is set out in the Court’s original opinion, 433
F.Supp. 67 (N.D. Iowa 1977), as well as the two
opinions of the Court of Appeals. 575 F.2d 620 (8th
Cir. 1978); 614 F.2d 1153. The Court of Appeals
vacated this Court’s original judgment and remanded
the case with several directions. First, the Court
entered judgment quieting title to the trust lands in-
volved in this action, except those claimed by the State
of Iowa, in the United States as trustee and the
Omaha Indian Tribe. Second, the Appellate Court
ordered that the Tribe’s case against the State be
severed, so that this Court could separately determine
itt
32a
whether the Tribe sustained its burden of proof
against the State. 614 F.2d at 1161.
Several additional issues were not resolved by any
of the Appellate Court decisions in this case. One
issue concerns the ownership of land within the Bar-
rett Survey which was allotted to individual Indians
and subsequently patented to non-Indians, or re-
linquished by the Indian allottees back to the Tribe.
The Court of Appeals’ second decision concerned only
trust lands and failed to respond to issues of owner-
ship of “fee patented” lands. The Court’s first deci-
sion remanded the issues of fee patented land owner-
ship back to this Court. 575 F.2d at 651, n.70. This
Court must further address the defendants’ claim for
the value of improvements placed upon the land in
which title was quieted in plaintiffs. Finally, this
Court has before it the parties’ motions for summary
judgment concerning title to lands outside the Barrett
Survey within the Blackbird Bend area.
To better understand the remaining issues and
claims of the parties, the Court refers to Exhibit T80.
(Plate 1) The area in orange represents land which
has never been allotted to any member of the Omaha
Tribe and has never been patented by the United
States to anyone. These are trust lands claimed only
by inaividual defendants and clearly are governed by
the Court of Appeals’ order to this Court to quiet
title in the United States as trustee and in the Tribe.
The area in green on Exhibit T80 represents allot-
ments which have been relinquished by the allottees
or cancelled. See also, Exhibits A through P.’ Finally,
1 Exhibits A through P are the letters of various allottees
or their heirs requesting that their original allotments within
the Omaha Indian Reservation be exchanged for new allot-
ments. Because of the encroachment of the Missouri River,
33a
the cross-hatched areas on Exhibit T80 are lands
which have been patented in fee or otherwise left
their trust status after the 1854 Treaty. The indi-
vidual defendants assert a claim to the fee patented
lands based upon state laws for adverse possession,
statutes of limitation and laches.
The Tribe contends that both the individual de-
fendants’ claim to fee patented lands and the State of
Iowa’s claim to land along the western edge of the
Barrett Survey, are defeated by the evidence estab-
lishing that all of the land in the western Barrett
Survey was eroded and replaced by accretions to
tribal trust land. The prior decisions in this case
place upon the Tribe the burden of proving its case
against the State by a clear preponderance of the
evidence. 99 S.Ct. at 2543: 614 F.2d at 1161. This
Court must address first the State’s argument con-
cerning the scope of the Tribe’s burden of proof.
II. THE TRIBE’S BURDEN OF PROOF AGAINST
THE STATE OF IOWA
The Tribe asserted title to trust lands in the eastern
portion of the Barrett meander lobe based on a series
of river avulsions between 1867 and 1923, which left
these original reservation lands in place. 433 F.Supp.
at 70-71. After reaching its 1923 position,? however,
the Tribe asserted the River moved easterly, eroding
the western portion of the Barrett Survey up to a line
running north to south through the western edge of
Nebraska Sections 13 and 24.*° From this line east-
the original allotments had become unsuitable for farming.
(Corke-86 :12-88:12).
? Exhibit T105, (Plate 2).
* See, Exhibit T80; (Abrahamson—1425 :7-19).
34a
ward in the Barrett Survey, the Tribe alleged its
lands left in place by pre-1923 river avulsions were
not later obliterated. From this line, to the west in
the Barrett Survey up to the 1943 Iowa-Nebraska
Compaci line, the following specific River movements
were asserted: (1) From 1923 to 1930, the River
eroded all of the Barrett Survey lands lying west of
the “not obliterated” line, as the River moved east-
ward; (2) From 1930 to 1948, the River receded
westward to its present location, replacing all of the
western Barrett Survey lands with accretions and
relictions. These accretions attached to tribal lands
in place in the Barrett Survey east of the “not ob-
literated” line. See, Tribe’s Post-Trial Proposed Find-
ings of Fact, No. 58; (1446:9-1447:24).
The Tribe owns the trust lands east of the “not
obliterated” line by virtue of the Court of Appeals’
decision which held that the individual defendants
failed to prove their superior title thereto based on
pre-1923 river movements. 575 F.2d at 650, 651; 614
F.2d at 1161. The land claimed by the State of Iowa
is located along the Compact line in the western por-
tion of the Barrett Survey. See, State’s Proposed
Findings on Remand, No. 41. Consistent with its
original theory, therefore, the Tribe asserts title to
these lands as accretions created after 1923, which
attached to eastern tribal lands.
The State of Iowa, however, contends that the Tribe
must affirmatively prove pre-1923 river avulsions as
well as movement by accretion thereafter.* The State
* This Court is puzzled by the Court of Appeals’ statement
that the Tribe should “point out specific evidence relied upon
to show avulsion on the particular land claimed by the State.”
614 F.2d at 1161. A cursory reading of either the Tribe’s
Post-Trial Proposed Findings or the Record the Tribe de-
85a
asserts it is not bound by the Court of Appeals’ deci-
sion quieting tribal title to the eastern Barrett Survey
lands, since that decision was based upon the failure
of other defendants to meet their burden of proof
under 25 U.S.C. § 194. That decision “does not estab-
lish, in this proceeding in which the [Tribe has] the
burden of persuasion, that the river moved to its 1879
and 1923 positions by avulsion. ...”’ State’s Proposed
Conclusions on Remand, No. 10. Given the realloca-
tion of the burden of proof on remand, the State con-
tends there is a “nonidentity of issues.” In support
of its conclusion that the Tribe must prove pre-1923
avulsions over eastern Barrett Survey lands, the State
cites Young & Co. v. Shea, 397 F.2d 185, 188-189
(5th Cir. 1968); In re Four Seasons Securities Laws
Litigation, 370 F.Supp. 219, 285 (W.D. Okl. 1974);
Finnerman v. McCormici:, 499 F.2d 212, 214 (10th
Cir. 1974) ; Shimman v. lrank, 625 F.2d 80, 89 (6th
Cir. 1980). These cases stand for the rule that a
judgment obtained in a prior, distinct proceeding will
not resolve common issues of fact in a subsequent case
between the same parties, in which the burden of
persuasion differs. See also, Rest. 2d Judgments,
§ 68.1(d).
Admittedly, this is not a proper case for the invoca-
tion of the doctrines of res judicata and collateral
estoppel. Res judicata requires a showing that there
been a previous action between the same parties
involving the same subject matter, in which a final
judgment has been rendered with respect to the same
cause of action. Parklane Hosiery Co., Inc. v Shore,
veloped at trial would have revealed that its claim against
the State did not rely upon proof of pre-1928 avulsions. This
Court does not, therefore, deem that statement controlling on
remand.
36a
439 U.S. 322, 99 S.Ct. 645 (1979); Bryson v. Guar-
antee Reserve Life ins. Co., 520 F.2d 563 (8th Cir.
1975). Clearly, the Tribe does not invoke a judgment
obtained in a prior, cistinct proceeding. The judg-
ment quieting tribal title in eastern Barrett Survey
trust lands was entered on appeal in this action, and
it concerned the title to property distinct from the
land the State claims.
Further, collateral estoppel means that when an
issue of ultimate fact has once been determined by a
valid and final judgment, the issue cannot again be
litigated between the same parties in a future law-
suit. Harris v. Washington, 404 U.S. 55 (1971);
Oldham vy. Pritchett, 599 F.2d 274 (8th Cir. 1979).
The issue of ultimate fact determined by the Court of
Appeals was title to trust lands claimed by other in-
dividual defendants. Title to that land is no longer in
issue. This case, on remand, does not concern the
power of the Court to decide issues already determined
by a prior, distinct proceeding. Neither collateral
estoppel, therefore, nor any exception to the doctrine
based on reallocations of burden of proof, apply to
this stage of the proceeding.
Nonetheless, the State cannot require the Tribe to
prove river movements over eastern trust lands the
State does not claim, the title to which was quieted
in the Tribe against other defendants. The decision
of the Court of Appeals did not resolve an issue of
fact common to the issues now before this Court. The
fact that the burden of proof differed concerning other
land and other parties is of no consequence to the
Tribe’s claim against the State.
It does not matter that the Court of Appeals did
not finally determine the nature of the pre-1923 river
movements over eastern trust lands. That issue is no
cs
So ahs e
37a
longer relevant. The State does not claim title to any
eastern trust lands affected by the pre-1923 river and
governed by the Court of Appeals’ mandate. Proof of
pre-1923 river changes is not essential to the Tribe’s
claim against the State. The decision of the Court of
Appeals quieting tribal title to land lying east of the
State’s claims, therefore, constitutes the law of this
case.
The Eighth Circuit Court of Appeals has repeatedly
stated :
When a case has been decided by this court on
appeal and remanded to the District Court, every
question which was before this Court and dis-
posed of by its decree is finally settled and deter-
mined. The District Court is bound by the de-
cree and must carry it into execution according
to the mandate. .. . That Court is without power
to do anything which is contrary to either the
letter or spirit of the mandate. ... Thornton v.
Carter, 109 F.2d 316, 319-320 (8th Cir. 1940) ;
Houghton vy. McDonnell Douglas Corp., 627 F.2d
858, 865 (8th Cir. 1980); Paull v. Archer-
Daniels-Midland Co., 313 F.2d 612 (8th Cir.
1963.)
To require the Tribe to reassert its evidence of river
movements over land which it owns under the Court
of Appeals mandate would be contrary to the decree
this Court is bound to execute upon remand of this
action.
Accordingly, the evidence which is relevant to the
Tribe’s claim against the State is that which concerns
the movement of the river, from 1923-1943, over the
land the State claims.
.(60m0
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PLATE 8
The 1944-1945
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47a
III. THE MISSOURI RIVER BETWEEN 1923-
1943
A. U.S. Corps of Engineers maps and aerial photo-
graphs trace the location of the river during this
period. In 1923 (Exhibits W-04; T-35; T-105, com-
posite), the river flowed north to south through Ne-
braska Sections 10, 11, 14 and 15. (341:8) When it
reached the southeast corner of Section 15, the river
made a 90 degree angle turn to the east, traversing
the southern portion of Sections 14, 13 and 18. The
river then turned south and left the Barrett Survey
area. The land on the east bank, in Sections 11, 14,
13 and 18, was supporting some vegetation, consist-
ing primarily of small willows.
After 1923, the river became “braided.” (1073:12-
14) That is, the river flowed in a wide riverbed, with
many channels. (1101:23-25) From 1923 to 1927
(Plate 3), the left bank of the river migrated a mile
to the east, into Sections 13 and 24. (2084:12) (Ex-
hibits W-54, T-36, T-106, composite) In 1928, the
riverbed extended from the western half of Section
15, across Section 14, to the west half of Sections
13 and 24, (Exhibit T-107) The maps, photographs,
and expert testimony indicate that the left bank in
Sections 13 and 24 consisted of fast, stable land sup-
porting willows and other vegetation. (Robinson
1075:13-16; 1078:10-16; 1081:17); (Exhibit T-107,
48a
The location of the river in 1930 is indicated by
Exhibits T-41, V-4, T-108 and Iowa H-8. (Plate 5)
Through 1932, the river continued to recede west-
ward. (1085:17-20); Exhibit 109; (1098:23-25)
In 1936, the Corps of Engineers began construction
of structures in the Blackbird Bend area designed to
train the river into a fixed alignment. 433 F.Supp.
at 86. (2092:10) The projects consisted of dikes and
an abatis. Several private individuals® also con-
structed levees across the Barrett Survey lands. The
Corps constructed dike 749.3, in a southwesterly di-
rection across Sections 14 and 15. Exhibit, Wilson
D-5. Additionally, a private structure (the Peterson
levee) was built north to south across the western —
half of Section 13. This levee coincides with the
farthest eastern progression of the river after 1923.
Exhibit, Wilson I-5. Another private,structure (Kirk
levee) and an abatis built in the ndthwest corner of
Section 13 also affected the course of the river across
the western Barrett Survey.
The maps and photographs of the river in 1937
(Exhibit B-5) 1939 (Exhibit D-5) and 1940 (Ex-
hibits F-5 and G-5) show the progressive westward
movement of the main channel until it reached the
1940 designed channel. (Plates 6 and 7) The river
receded substantially from Sections 11, 14 and 23 by
1937. In 1939, there was fast, stable land in Section
11 and in the eastern half of Section 14,
willows and other vegetation. By 1940-1941, the river
was largely confined to a single channel which cor-
responded approximately to the 1943 lowa-Nebraska
Boundary Compact line. Exhibits I-8 and Wilson G-
5. Intermittent channels crossed sand bars on the
* Defendant’s predecessors in interest, Kirk and Peterson.
49a
left bank in Sections 10, 11, 15, 22, 23 and the western
edge of Section 14. These sand bars showed charac-
teristics of permanence, including vegetation.
Having established the location of the river during
this period, this Court will review the testimony con-
cerning the nature of the river movements.
B. The Tribe asserts all of the land west of Sec-
tions 138 and 24 in the Barrett Survey formed as
accretions to eastern tribal lands. The Tribe relies
upon the testimony of its own expert witnesses, Doyle
Abrahamson (surveyor), Dr. Charles Robinson (ge-
ologist), and Elmer Clark (surveyor).
1. Mr. Abrahamson testified .pecifically concerning
the location and obliteration of the “fee pat-
ented” lands in the western Barrett Survey.
Exhibit T-80 (1416:1, et seg.) As the river
moved eastward after 1923, land in the west-
ern Barrett Survey eroded away. “Fee pat-
ented” lands in Sections 10, 11, 14 and 15 were
destroyed shortly after 1923. (1417-1419).
Other fee land in Section 14 eroded away by
1927. (1419:17) By 1928, the river had obliter-
ated fee land in Sections 22 and 23. (1420:8)
Finally, by 1930, Abrahamson concluded “all of
the fee patented tracts had been obliterated.”
(1420:22-23) Relinquished allotments in the
western Barrett Survey were likewise eroded
away by 1930. (1424:9)
Abrahamson drew a line across the western
half of Section 13. This line marked the far-
thest eastward progression of the river after
1923. Lands east of this line were not obliter-
ated by the river during this period. (1425:7,
et seq.) Additionally, this line coincided with a
“relief” which Abrahamson observed on the
t-
- ‘
“ — :
50a
ground across the western half (W2) of Sec-
tions 138 and 14. (1421:18) By the term “re-
lief,” he meant a difference in elevation between
the eastern “not obliterated” lands and those
tracts in the western Barrett Survey. He con-
cluded the land to the west of this “relief” con-
stituted a continuous piece of land, extending to
the present location of the river. (1422:10,
1428-20)
. Dr. Robinson’s conclusions are consistent with
Abrahamson’s testimony. He conducted soil
composition studies of both the surface and sub-
surface geology of the Blackbird Bend area.
(790-792) He agreed that Barrett Survey lands
in Sections 18, 19, 20 and 24 were not obliter-
ated by the river when it travelled east to its
1928-1930 position. (1292:19-22). The western
Barrett Survey was part of tie riverbed during
this period. Dr. Robinson stated the river
moved westward after 1928 and the artificial
structures built in the mid-1930s aided this
process. (1102:11-12) The purpose of the Corps’
projects was to confine and “straighten” the
river. Consequently, the river’s “gradient in-
creased and the erosive power of the river was
increased, and the level (of the riverbed)
dropped. . . .” (1094:3-9) Dr. Robinson con-
cluded that the river eroded the land in the
western Barrett Survey when it moved west af-
ter 1930, because the dikes and abatis caused
the river to be “shortened” and because the level
of the riverbed was lowered. (1096:24-25) As
a result of the lower river level, land in Sec-
tions 11, 14 and 23 reemerged and became
stable. (1094:11-18) These new lands were
5la
“continuous,” extending from Section 13 west-
ward. (1097:10-16) Dr. Robinson testified that
the reemergence of new land was an “impercep-
tible” change occurring after 1923. (1096:5-8).
The western Barrett Survey land which ap-
peared as the river receded is identifiable and
in place today. (1098:25-1099:1)
8. The Tribe’s witness, Mr. Clark, observed that
river levels in the Blackbird Bend area reflected
a wet cycle from 1920-1930 and a drought pe-
riod from 1930-1940. (505:9-11) He stated the
Corps’ dikes and abatis, together with private
structures, diverted the river westward in the
Barrett Survey and prevented the encroachment
of the river upon eastern Barrett Survey land.
(398-399) Additionally, upstream impound-
ments of the river after 1935 affected the flood-
ing, erosion, accretion and reliction of the river
throughout the western Barrett Survey. (502,
520-521)
Summarily, the Tribe’s witnesses agreed that
western Barrett Survey lands were first ob-
literated by the eastward progression of the
river from 1923-1928; new land reappeared in
this area attaching by accretion and reliction to
Sections 13 and 24 when the river eroded and
receded westward from 1928-1943. Defendant’s
experts drew substantially the same conclusion.*
* See, testimony of Dr. George Hallberg (geologist), at
2654:18, 2690, et seg. Significantly, Hallberg concluded the
land in Section 11 was formed after 1927 by “accretion type
bar deposits.” (2702:8-24) And land in Sections 14 and 23, as
shown on the 1940 map, were accretions to the east bank.
(2708 :20-2709 :8) See also, Testimony of Mr. Huber, who
"
7 4,
e
- _
52a
Most significant is the testimony of Mr. Ray-
mond Huber concerning the effect of the dikes
and abatis built in the Barrett Survey during
this period. (2092 :28, et seg.) The dikes served
to “train the river over into the alignment which
was designed by the Corps of Engineers.”
(2092 :23-24) A dike, Huber stated, causes dep-
osition and accretion to riparian land because
it slows the current of the river.’ (2094:3-4)
Huber also referred to the private levees con-
structed to drain as well as to shield eastern
Barrett Survey lands from encroachment by the
river. (2101:3) None of these structures, he
concluded, were Luilt to cause an avulsion.
(2095 :10)
4. The growth of vegetation during this period,
as shown by the maps and photographs, is con-
sistent with the movement ~f the river by
erosion against the right bank and accretion
deposition and reliction to the left bank.* Simi-
worked in this area for the Corps of Engineers after 1936.
(1982 :8 ; 2088 :2, et seq.) He agreed the western and southern
portions of the Barrett Survey were eroded away through
1928 and 19380. (2085:3-17; 2086:7-10) Huber concluded,
generally, that from 1923 to 1940, the river moved east and
then west, by erosion and accretion. (2102:28-2103:38).
TAn abatis likewise slows the flow of the river, causing
deposition downstream as well as upstream. (2131 :20-25)
Huber testified an abatis in the Barrett Survey formed accre-
tions in Section 14. (2148:17)
* The Court of Appeals noted: “A large stand of timber
shown in the northwest corner of the Barrett Survey area
prior to 1928 was no longer visible in & 1927 aerial survey of
the area, indicating the land on which it stood had been
eroded.” 575 F.2d at 649, n. 65.
58a
larly, soil samples taken from the western Bar-
rett Survey consist primarily of silts, fine sand
or very fine sand. Exhibit, Gov’t 151. These
materials are not cohesive and are easily erod-
able. (2587:13-16) These are soils typically de-
posited in an alluvial floodplain following the
migration of a river.
C. The State of Iowa’s island and abandoned chan-
nel theory
Under the terms of the Iowa Nebraska Boundary
Compact, the area claimed by the State of Iowa was
ceded by the State of Nebraska. Therefore, Nebraska
law governs title claims based upon land formed in
this area prior vo the Compact date of July 12, 1943.
Nebraska v. Iowa, 406 U.S. 117, 120 (1972). How-
ever, Iowa law controls events occurring after the
Compact date. State v. Simmons, 290 N.W. 2d 589,
593 (1980), cert. denied, 101 S.Ct. 128 (1980). In
Iowa, the State owns the bed of all navigable streams
from the ordinary high water mark to the “thread”
or center of the stream, as well as all islands arising
therefrom. Mather v. State, 200 N.W. 2d 498, 500
(Iowa 1972). In Nebraska, the riparian proprietor
owns the riverbed to the thread of the stream and all
islands which develop by accretion to the stream bed.
Valder v. Wallis, 196 Neb. 222, 242 N.W. 2d 112
(1976) ; Theis v. Platte Valley Public Power and Ir-
rigation District, 187 Neb. 334, 289 N.W. 386
(1930).
The State of Iowa admits the western edge of the
Barrett Survey was part of the bed of the Missouri
River between 1923 and 1931.° The State, however,
* Towa Proposed Findings and Conclusions, on Remand, No.
40. See, Exhibits R-4, S-4, V-4, Y-4, 41 and 42.
54a
asserts the land it claims consists of an island and
exposed, abandoned river channels which did not form
until after 1943. These lands, the State contends,
developed in the Iowa portion of the riverbed, apart
from the Iowa high bank. Therefore, the State of
Iowa claims title to the tracts based upon the Equal
Footing Doctrine and the doctrine of state ownership
of the bed of navigable streams. Montana v. United
States, U.S. ——, 67 L.Ed. 2d 493 (1981);
Oregon, ex rel. State Land Board vy. Corvallis Sand
and Gravel Co., 429 U.S. 353 (1977); State v. Sim-
mons, supra; Mather v. State, supra.
The Tribe contends that the land occupying the
area the State claims developed as accretions and
relictions to riparian tribal land, not as an island
or abandoned channel. The United States argues,
alternatively, that if an island did form, it was a
permanent formation prior to 194° Under Nebraska
law, the Government and the Tribe, as riparian land
owners, would also own the “island.”
The state’s claim under the doctrine of state owner-
ship of the bed and banks of navigable rivers is in-
consistent with the theory upon which it relied at the
close of the trial of this case. The State joined in the
post-trial brief of defendants, in which the State as-
serted the eastward movement of the river from
1923-1930. Thereafter, the State agreed the river
moved westward by accretion to the left bank.” Sig-
nificantly, the State also joined in defendant’s state-
ment that, “. . . all parties agree that the fee pat-
ented lands were eroded away and washed down the
river. They disagree as to the ownership of the land
55a
formerly occupied by the fee patented land, became
attached.” * The State’s position at the close of trial
was that the land it claims formed as accretions to
riparian mainland owned by other defendants, who
conveyed their interest in such lands to the State by
quit claim deeds. Specifically, the State joined in as-
serting Proposed Conclusion of Law, No. VII, which
concluded that all of the land within the Barrett
Survey formed as accretions to the left or Iowa bank,
prior to 1943.
The State on remand, however, proposed that the
land it claims did not accrete to the left bank prior
to 1943. Instead, it asserts the tracts formed as an
island accreting to the riverbed apart from the left
bank, and as an abandoned river channel, after 1943.
An island traditionally is defined as a permanent
body of land, separate and distinct from the main-
land, and above mean high water. An island must be
surrounded by distinct channels of the river, which
separate the island from the mainland. Burket v.
Krimlofski, 167 Neb. 45, 91 N.W. 2d 57 (1958);
Summerville vy. Scotts Bluff County, 182 Neb. 311,
154 N.W. 2d 517 (1967); State v. Raymond, 119
N.W. 2d 135 (Iowa 1963) ; Mather v. State, supra.
The State of Iowa presented no testimony at trial
to support its post-1943 “island” and abandoned chan-
nel theory. Nonetheless, the State refers to maps and
aerial photographs of the western Barrett Survey.”
These exhibits allegedly trace the development of an
“island” adjacent to and south of dike No. 749.3, in
56a
Sections 14, 15 and 23. The area adjacent to and
north of the dike is the land the State claims as an
abandoned river channel. A 1944-1945 aerial photo-
graphic mosaic, the State concludes, depicts an
“island” in permanent existence for the first time.
Wilson Exhibit H-5. The State claims this island
formed as a sandbar within the Iowa portion of the
riverbed, separated at all times from the Iowa shore
by a well-defined channel.”
In considering a claim that an island arose from
the riverbed, separated from both riparian banks, cer-
tain evidence is relevant. For example, in Tyson v.
State of Iowa, 283 F.2d 802 (8th Cir. 1960), the
Eighth Circuit Court of Appeals considered eye wit-
ness testimony, photographs, land surveys, and den-
drochronology studies reporting the size, age and loca-
tion of vegetation. In this case, the State offered no
testimony, eye-witness or otherwise, supporting the
development of an island and abandoned river chan-
nel. This fact is particularly remarkable in view of
the time period involved. Witnesses would certainly
be available to testify concerning developments oc-
curring only after 1943. The State offers no photo-
graphic evidence of its theory, however.
Specifically, the State relies upon the 1944-45 photo-
mosaic, depicting the “island” as a permanent forma-
57a
area as it appeared in 1948. There is a gap of three
years in the State’s proof—from 1941 (photo exhibit
G-5) to 1944-1945 (exhibit H-5). The States [sic]
wishes this’ Court to speculate concerning the perma-
nence of the land it claims in light of the development
of vegetation. It is, however, only an “educated guess”
by the State that vegetation appearing in 1944 was not
also present and permanent before 1943. Indeed, the
land in the area of the State’s claims does appear to
be supporting some vegetation in the 1941 aerial
photograph. Additionally, the Tribe offered Exhibit
105A, a summary of a dendrochronology study of
Blackbird Bend conducted by George S. Gorsuch.
(1357:4, et seg.). In the area comprising the State’s
claimed “island,” the study located some cottonwoods
aged forty-two years, originating in 1943. It is un-
disputed that cottonwoods are secondary vegetation,
which will not grow until after the land is dry, estab-
lished, ahd capable of supporting primary growth,
such as willows. 433 F.Supp. at 76. As the Court of
Appeals stated, “. . . vegetation does not usually
appear on a sandbar until it has been in existence for
several years.” 283 F.2d at 810.
Therefore, this Court concludes the State, on re-
mand, referred to only speculative evidence concern-
ing its claim that Ivy “Island” was a permanent
formation only after 1943. Moreover, the State cited
no testimony concerning the formation of an inde-
pendent island—in order to refute its previous posi-
tion that the land comprising Ivy “Island” constituted
accretions to the left bank. The State offered no evi-
dence at trial concerning the nature of the channel
which it claims separated the “island” from the left
bank. Aerial photographs taken in 1945 and 1954
could equally support the conclusion that Ivy “Island”
58a
was surrounded by water “only when the river [was]
high and connected with the mainland when the river
[was] low.” Mather v. State, 200 N.W. 2d 498, 501
(Iowa 1972). In fact, Doyle Abrahamson testified
that the stream appeared to the east of the “island”
after the land had already formed as accretions and
relictions to the left bank. (1427:19-1429:14). Ac-
cordingly, the Tribe argues it retains title to the ac-
cretions. This position is consistent with the law of
Nebraska, which provides, “[w]here an accretion was
begun by a deposit against the shores of the main-
land, the subsequent existence of an intermediate
stream between the mainland and the accretion does
not prevent the accretion from belonging to the main-
land owner.” Independent Stock Farm vy. Stevens,
259 N.W. 647, 649 (Neb. 1935).
FINDINGS OF FACT ON THE MERITS
From all the evidentiary matters considered, the
Court finds:
1. That in 1923, the Missouri River cut entirely
across Nebraska Sections 10, 11, 14 and 15, within
the Barrett Survey. By the process of erosion, the
riverbed and the left bank were obliterated.
2. That from 1923 to 1928, the river gradually
migrated eastward in the Barrett Survey. During
this migration the river eroded and obliterated land
occupying the left bank and the riverbed. The 1928
left bank of the river represented the farthest eastern
migration of the river in the Barrett Survey after
1923.
3. That in 1928, the left bank of the river occupied
the west half of the west half of Sections 18 and 24.
The river occupied substantially all of the tracts
claimed by the State of Iowa as well as the entire area
59a
described in fee patents which individual defendants
claimed. As a result of the erosion of the river through
1928, all of the land within the Barrett Survey west
of the 1928 left bank was obliterated and no identi-
fiable land remained in place.
4. That from 1£28 to 1943, the Missouri River re-
versed its direction and migrated westward over the
Barrett Survey. The river further eroded and exca-
vated the right bank and gradually and imperceptibly
deposited silt and sediment upon the left bank. These
accretions attached to fast, stable land in Sections 13
and 24 which were riparian to the left bank of the
river between 1927 and 1930.
5. That artificial structures, including an abatis,
dikes and levees were constructed across the western
Barrett Survey by both the Corps of Engineers and
private individuals. The purpose of these structures
was to create accretions to land adjacent to the struc-
tures, to drain or protect eastern Barrett Survey
lands, and to train the river into a designed channel.
These structures contributed to the gradual subsid-
ence of the river, westward, from the 1928 left bank.
By this additional process of reliction, new lands were
uncovered and added to the left bank.
6. That by 1943, the accretions and relictions were
new lands contiguous to Sections 13 and 24 and con-
tinuous westward to the present location of the
Missouri River. Subsequent to the formation of these
continuous accretions, an intermediate stream cut
across Sections 10, 11, 14, 15, 22 and 23. This stream
separated accretions adjacent to the Iowa-Nebraska
Compact Line from the mainland, thereby creating
the body of land known as Ivy “Island.” Ivy “Island,”
therefore did not form by accretion to the riverbed,
below the ordinary high watermark.
& ’
60a
7. That the State of Iowa presented no evidence to
establish a factual predicate for its conclusion, on
remand, that the land south of dike No. 749.3 formed
as an island in the Iowa portion of the riverbed after
1943 or that the land north of dike No. 749.3 is an
abandoned river channel. This Court’s findings con-
cerning the tracts claimed by the State of Iowa are
not based upon inferences drawn from any weak-
nesses in the State’s evidence tending to prove its
island and abandoned channel theory. Rather, the
findings of this Court are based upon the clear pre-
ponderance of the evidence, presented by both the
Tribe and defendants, that the river changed during
this period by creating continuous accretions and re-
lictions to the left bank riparian land.
8. That there is no substantial evidence defendants
or their predecessors possessed any fee patented tracts
during the time the river occupied the western Bar-
rett Survey from 1923 to 1930." The dry lands de-
fendants occupied after the river finally receded from
the western Barrett Survey were not the original fee
patented lands. The defendants entered upon new
lands formed by accretion and reliction to stable land
in Sections 13 and 24. These accretions replaced the
fee patented tracts which were eroded and washed
away by the river prior to the entry by defendants or
their predecessors.
9. That no party to this case either pleaded or sub-
mitted evidence to prove that the river moved by
avulsion from 1923-1943.
1# For example, concerning the fee patented tracts, counsel
for defendant stated: “We know nothing about them being
abandoned except nobody was occupying them while they were
in the bottom of the river.” (113:8-10)
6la
CONCLUSIONS OF LAW
1. The Court of Appeals ordered this Court to
quiet title to the trust lands involved in this action,
except those claimed by the State of Iowa, in the
United States as trustee, and in the Omaha Tribe.
This order establishes as the law of this case that the
Tribe is the owner of all Barrett Survey land east of
and including Sections 13 and 24. Additionally, based
upon the C «rt of Appeals’ mandate, the United
States ana ~ 2 Tribe own those allotted parcels to
which trust patents were issued but subsequently re-
linquished or cancelled—except those claimed by the
State of Iowa.” The river movements relevant to the
ownership of the remaining lands within the western
Barrett Survey are those described above, which oc-
curred from 1923-1943. Both the Tribe and the de-
fendants offered proof that the river changed by
accretion and reliction.
2. Federal law, borrowing the Nebraska rule of
decision, governs this Court’s determination of river
movements over Barrett Survey land. The prior opin-
ions in this case set out the law of accretion and relic-
tion in Nebraska. 433 F.Supp. at 62-65; 575 F.2d at
633-639; 614 F.Supp. at 1156-1160. Two elements
16 Allotted lands are owned by the United States, as trustee,
for the benefit of the allottee. See, 25 U.S.C. § 8348; Tooahnip-
pah v. Hickel, 897 U.S. 598 (1970); County of Thurston,
State of Nebraska Vv. Andrus, 5686 F.2d 1212 (8th Cir. 1978),
cert. denied, 441 U.S. 952 (1978). It follows that the allotted
tracts remain trust lands whether the patent is subsequently
relinquished or cancelled under 25 U.S.C. § 344. As such, the
tracts are governed by the Court of Appeals’ order to quiet
the Tribe’s title in trust lands
defendants.
62a
are essential to a finding of accretive changes in a
river: First, “[a] boundary changes only where the
river’s change of channel is caused by a process of
erosion or excavation of earth from one bank and
deposition of identifiable silt and sediment on the
other—the land between the old and new channels
must be completely disintegrated.” 614 F.2d at 1157;
State v. Ecklund, 23 N.W. 2d 782, 789 (Neb. 1946) ;
second, “. . . no matter how ‘rapid and great’ is ‘the
abrasion and washing away,’ or ‘the diminution’ of
soil, the accretion (or reliction) of soil ‘is always
gradual and by imperceptible deposit of floating
particles of earth.’” 614 F.2d at 1157, quoting, Ne-
braska v. Iowa, 143 U.S. 359, 368-369 (1892). Both
elements must be present.
“Reliction” is the term applied to land added and
uncovered by a gradual subsidence of water from any
cause. Durfee v. Keiffer, 168 Neb. 272, 95 N.W. 2d
618 (1959) ; Jones v. Schmidt, 170 Neb. 351, 102 N.W.
2d 640 (1960); Dartmouth College v. Rose, 172 Neb.
764, 112 N.W. 2d 256 (1961). Land added by either
accretion or reliction to riparian land is the property
of the riparian owner. Id.; Fontenelle v. Omaha Tribe
of Nebraska, 298 F.Supp. 855, 859 (D. Neb. 1969),
aff'd, 430 F.2d 143 (8th Cir. 1970).
8. The Tribe sustained its burden of proving, by a
clear preponderance of the evidence, (a) thaé® the
tracts claimed by the State of Iowa were washed away
by the action of the river eroding its bed and banks;
and (b) that by a gradual and imperceptible process
of deposition and reliction, new lands were created
which attached to and extended westward from ri-
parian tribal trust lands in Sections 13 and 24, con-
tinuously, to the present location of the river. The
68a
State of Iowa, therefore, has no claim or right thereto
based upon river movements occurring after 1923.”
The Tribe proved the accretions and relictions to
tribal land were caused, in part, by the projects of
both the Corps of [E]ngineers and private individ-
uals.
It is well settled that the fact that artificial means
caused, in whole or in part, the working of the proc-
esses of accretion or reliction does not affect the rule
that a riparian owner takes new land formed against
his tract. Bonelli Cattle Co. v. Arizona, 414 U.S. 313
(1973), rev’d on other grounds, 429 U.S. 363; County
of St. Clair v. Lovingston, 90 U.S. 46 (1874); Duke
v. Durfee, 215 F.Supp. 901 (D. Mo. 1961), rev’d on
other grounds, 308 F.2d 209 (8th Cir. 1962), rev'd,
375 U.S. 106 (1963); Kansas v. Meriwether, 182
Fed. 457 (8th Cir. 1910). In Krumweide v. Rose,
the Nebraska Supreme Court referred to a channeliza-
16 The State’s claim to western Barrett Survey land bad
upon quitclaim deeds from other defendants also
quitclaim is used by a grantor to convey only such interest
as he has, in contradistinction to a grant of the fee or other
estate with warranty of title. United States v. Speidel, 562
F.2d 1129 (8th Cir. 1977), cert. denied, 486 U.S. 915 (1977) ;
Walters v. Walters, 231 Iowa 1267, 3 N.W. 2d 595 (1942);
Mack v. Tredway, 244 Iowa 240, 56 N.W. 2d 678 (19538) ;
Swab v. Appanoose Country Club, 208 N.W. 2d 318 (Iowa
1972) ; Kennedy v. Potts, 128 Neb. 142, 258 N.W. 471 (1985) ;
Smith v. Berberich, 168 Neb. 142, 95 N.W. 2d 825 (1959).
“TU]nder a conveyance by a quitclaim deed the grantee can
acquire no better interest than the grantor had. If the grantor
himself has no title or interest to the property conveyed, most
courts hold that the grantee takes nothing under a quitclairh
deed... .” 28 Am.Jur. 2d, Deeds § 291, at p. 8324. Based upon
this Court’s findings and conclusions, the individual defend-
ants had no title to western Barrett Survey land. It follows
ee ne ee Ne See ee eae
defendants.
64a
tion project similar to that of the Corps of Engineers
in this case. The court held, “. . . this development
work finally resulted in the destruction of the western
channel , . . and the acceleration of accretion... .
The fact that third parties performed construction
work and accelerated these processes does not alter
the application of the rule as to ownership of accre-
tion land.” 177 Neb. 570, 129 N.W. 2d 491, 496
(1964). Accord, Valder v. Wallis, 196 Neb. 222, 242
N.W. 2d 112 (Neb. 1976) ; Krimlofski v. Matters, 174
Neb. 774, 119 N.W. 2d 501 (1963); Ziembar v.
Zeller, 165 Neb. 419, 86 N.W. 2d 190 (1957)."
4. By virtue of the Court of Appeals mandate, the
United States, as trustee, and the Tribe own trust
lands in Sections 13 and 24 of the Barrett Survey.
These lands were riparian to the 1928 left bank of
the Missouri River, when it moved easterly in the
Barrett Survey. Accretions to land owned by the
United States in Sections 13 and 24 are also lands
owned by the United States. United States v. Boyd,
458 F.2d 1252 (6th Cir. 1972); United States v.
Claridge, 416 F.2d 933 (9th Cir. 1969), cert. denied,
897 U.S. 961 (1970); Beaver v. United States, 350
F.2d 4 (9th Cir. 1965), cert. denied, 383 U.S. 937
(1966). This general rule applies equally to lands
which the United States owns in trust for an Indian
tribe. Wilson, 442 U.S. at 673; Fontenelle v. Omaha
Tribe of Nebraska, 430 F.2d 143 (8th Cir. 1970);
United States v. Flowers, 108 F.2d 298 (8th Cir.
1939) ; Newman v. United States, 504 F.Supp. 1187
(D. Ariz. 1981).
_ See also, Lundquist, “Artificial Additions To Riparian
Land: Extending the Doctrine of Accretion, 14 Ariz. L. Rev.
815 (1972); Beck, The Wandering Missouri River: A Study
ae Law, 483 N.D. L. Rev. 429, 449 (1967) ; 68 A.L.R.
249.
65a
5. The Court of Appeals first observed that “[t]he
Government excepted from its complaint any claim
to approximately 400 acres of land which may have
been allotted to individual Indians and subsequently
patented to non-Indians.” 575 F.2d at 651, n.70. The
United States Supreme Court also noted several hun-
dred acres of land within the Barrett Survey were
claimed as fee patented lands. 99 S.Ct. at 2529. In-
dividual defendants, as well as the State of Iowa,
claimed title to the “fee patented” lands under Ne-
braska laws regarding adverse possession, statutes of
limitation and laches. The Tribe, however, proved
defendants never possessed the actual land described
in the fee patents because the river obliterated and
eroded the fee lands prior to defendants entry there-
upon. The lands defendants occupied after the river
finally receded were accretions to eastern tribal lands
in Sections 13 and 24. Consequently, the Tribe argued
the defendants cannot adversely possess accretions to
Indian trust lands, nor may state statutes of limita-
tion or laches operate to divest Indian title.
It is true that Indian lands, once patented in fee,
lose their status as trust lands and are governed by
state law. Larkin v. Paugh, 276 U.S. 481 (1928);
Oregon ex-rel. State Land Board v. Corvallis Sand &
Gravel Co., 429 U.S. 363, 377 (1977); Wilson, 442
U.S. at 671. This Court finds and concludes, how-
ever, the Tribe established by a preponderance of evi-
dence that the river eroded the lands in the western
Barrett Survey area, including those described in the
fee patents, and replaced those lands with accretions
and relictions to trust lands in place in Sections 13
* Neb. R.R.S., § 25-202 (1948).
66a
and 24."* In both Nebraska and Iowa, the effect of
such a movement of the river is to destroy the title
to the land obliterated by the movement of the river.
State v. Matzen, 197 Neb. 592, 250 N.W. 2d 2382
(1977); Winkle v. Mitera, 195 Neb. 821, 241 N.W. 2d
829 (1976); Rupp v. Kirk, 231 Iowa 1387, 4 N.W.
2d 264 (1942); Wilcox v. Pinney, 250 Iowa 1378, 98
N.W. 2d 720 (1959). This Court cannot, therefore,
apply state laws of adverse possession or laches based
1° The defendants contended 25 U.S.C. § 194 did not operate
to place upon them the burden of proof concerning river
movements affecting “fee patented” lands. This Court need
not address that issue. Even if 25 U.S.C. § 194 did not apply
and the Tribe had the burden of proof, this Court holds the
Tribe established by a clear preponderance of the evidence
its right and claim to the land occupying the area described
in the fee patents.
There can be no doubt, however, that 25 U.S.C. § 194 has
been a determinative factor in the outcome of this case. In
the Appellate stages of this proceeding, this previously un-
tested statute operated to shift the ordinary burden of proof
in a quiet title action to the individual defendants. This enor-
mous burden included the task of describing the nature of
river movements which occurred beginning over 100 years
ago. This Court firmly believes the statute thereby provided
the Tribe an unconscionable advantage in this litigation.
Moreover, the statute arguably operated to deprive these de-
fendants of their constitutional right to equal protection under
the law. In this age, Indian Tribes are often sophisticated
corporations which litigate claims using the legal and financial
resources of the United States Government. Consequently,
this Court believes the special treatment afforded an Indian
Tribe under 25 U.S.C. § 194 no longer “can be tied rationally
to the fulfillment of Congress’ unique obligation toward the
Indians. .. .” Morton v. Mancari, 417 U.S. 585, 555 (1974).
Although this issue was not properly before this Court, we
would welcome a challenge of the statute, on constitutional
grounds, in future cases.
67a
upon the former title to the lands in fee patent.”
Application of those laws, if at all, must be based
upon the present character of the title to the accre-
tions.
It is well settled that title by adverse possession,
laches, or statutes of limitation cannot be asserted
against the United States, United States v. Denby,
522 F.2d 1358 (5th Cir. 1975), reh. denied, 525 F.2d
693 (5th Cir. 1975); against land which the United
States owns in trust for an Indian tribe, United
States v. 7,504.8 Acres of Land, 97 F.2d 417 (4th Cir.
1938) ; Oneida Indian Nation of New York v. County
of Oneida, 4384 F. Supp. 527 (N.D. N.Y. 1977);
Schaghticoke Tribe v. Kent School Corp., 423 F.Supp.
780 (D.Conn. 1976) ; or agaist land which the United
States gains by accretion. Jackson v. United States,
56 F.2d 340, 343 (9th Cir. 1932); Beaver, supra;
Claridge, supra. Since the lands which defendants
eventually occupied in the western Barrett Survey
were no longer the fee patented lands, but were ac-
cretions to tribal lands owned by the United States
for the Omaha Tribe,” the defenses of adverse pos-
2° Defendants do not claim to derive title from any original
fee patent holder. Rather, they assert title by adverse posses-
sion. This current theory presumes the continued existence of
the land described in the fee patents, but is inconsistent with
defendants’ theory at trial—that all of the Barrett Survey
lands were destroyed by the river. 433 F.Supp. at 71.
1 This Court holds defendants did not begin to establish
the “possession” required by law to constitute an adverse
possession, until the river finally receded from the areas
described in the fee patents, sometime after 1980. Weiss v.
Meyer, 208 Neb. 429, 308 N.W. 2d 765 (1981). Similarly, in
Pokorski v. McAdams, 204 Neb. 725, 285 N.W. 2d 824 (1979),
the Nebraska Supreme Court held that a plaintiff did not
establish an adverse possession. During the time the river
68a
session, etc., are meritless. The new lands forming
westerly from Sections 13 and 24 became tribal lands
which never were allotted or conveyed to a restricted
Indian. The law compels this conclusion even though
the new lands occupied the same area described in the
fee patents. See, e.g., United States vy. Russell, 261
F.Supp. 196 (E.D. Okl. 1966).
Defendants cite Dillon v. Antler Land Co., 507 F.2d
940 (9th Cir. 1974) for the rule that fee patent land
owned by an Indian may be acquired by adverse pos-
session. Dillon did not concern land destroyed or
created by accretion and reliction. Defendants con-
tinue to equate the precise fee patent land lost by
erosion, with the land they occupied when the river
finally receded from this area. This premise is
groundless in view of the undisputed evidence, offered
by both the Tribe and defendants, establishing the
destruction of the fee lands by erosion.
6. The defendants finally assert the refusal of the
United States to claim the former fee patented lands
precludes the Tribe from so doing. Admittedly,
“. . . when the United States itself undertakes
to represent the allottees of lands under restric-
tion and brings suit to cancel prohibited trans-
fers, such action necessarily precludes the prose-
cution by the allottees of any other suit for a
similar purpose relating to the same property.”
Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 370
(1968) (Emphasis added)
But this rule does not bar the Tribe from recovering
tribal lands when the United States refuses to claim
occupied the land involved, the court found “no persuasive
subject to adverse possession.” Jd. at 827.
4
—
the same lands on behalf of the Tribe, or from re-
covering lands in addition to those the Government
claims.
This Court concludes the Tribe may bring an ac-
tion to recover accretions to tribal lands, notwith-
standing the refusal of the United States to add these
lands to its complaint in these consolidated cases.
Clearly, “. . . Congress intended by (28 U.S.C.)
§ 1362 to authorize an Indian tribe to bring suit in
federal court to protect its federally derived property
rights in those situations where the United States de-
clines to act.” Fort Mojave Tribe v. Lafollette, 478
F.2d 1016, 1017 (9th Cir. 1973). “In recovering
these lands, the Indians assert not merely their own
rights of occupancy, but the sovereign claims of the
United States as well.” Schaghticoke Tribe, 423 F.
Supp. at 784. See also, Moe v. Confederated Salish
& Kootenai Tribes, 425 U.S. 470, 473 (1976) ; Capitan
Grande Band of Mission Indians v. Helix Irrigation
District, 514 F.2d 465 (9th Cir. 1975). Accordingly,
since the defenses of adverse possession, statutes of
limitation, and laches would not be available had the
United States claimed the accretions attaching to
tribal trust lands, Board of Commissioners v. United
States, 308 U.S. 348, 351 (1939); United States v.
Schwarz, 460 F.2d 1365, 1371-1372 (7th Cir. 1972) ;
United States v. Ahtanum Irrigation District, 236
F.2d 321, 334 (9th Cir. 1956), cert. denied, 352 U.S.
988 (1957), the defenses will not apply to claims by
the Tribe, on its own behalf, to recover the same
lands. Schaghticoke, 423 F.Supp. at 784-785.
For the above-mentioned reasons, this Court con-
cludes the defendants have no right or claim to any
land in the western Barrett Survey, including the
lands occupying the area described by fee patents.
de es il
70a
This Court does not deviate from its original judg-
ment that the Missouri River moved over the Barrett
Survey—in all relevant..periods—by accretion to the
left or Iowa bank. Contrary to this Court’s original
decree, however, the Tribe prevails on remand. The
Court of Appeals effectively determined this outcome
when it quieted title in the Tribe to eastern Barrett
Survey lands. Any accretion to the left bank, there-
fore, added to land which the Court of Appeals held
was owned by the Tribe. This Court will not change
its view of the evidence and cannot change the man-
date of the Court of Appeals.
IV. IMPROVEMENTS
The defendants interpose a counterclaim against
the United States for the value of improvements they
made upon lands, title to which is now quieted in the
Tribe. The defendants assert two theories in support
of the counterclaim. First, they contend the general
principles of equity are binding upon the United
States. As a condition of obtaining equitable quiet
title relief, the government must do equity by reim-
bursing the defendants for improvements. Second, the
defendants assert that Nebraska law governs the
claim for improvements and that they are entitled to
recover under the Nebraska Occupying Claimants Act
(NOCA), Neb. R.R.S., 1943 §§ 76-301 to 76-311.
The United States opposes the claim for improve-
ments for two reasons. The government contends
sovereign immunity bars the claim. Additionally, the
United States argues NOCA cannot apply to this
action. For the following reasons, this Court con-
cludes defendants’ counterclaim for improvements is
barred by the sovereign immunity of the United
States.
:
'
e Pi
ol
Tla
The United States may be sued, even by counter-
claim, only when the government has waived its im-
munity from suit. United States v. Shaw, 309 U.S.
495 (1940); United States v. Agnew, 423 F.2d 513
(9th Cir. 1970). The terms of its consent to be sued
define any court’s jurisdiction to entertain the suit.
United States v. Sherwood, 312 U.S. 584, 586 (1941).
Moreover, no waiver of sovereign immunity may be
implied, but must be expressed unequivocally. United
States v. Testan, 424 U.S. 392, 399 (1976). There is
no generally implied waiver of sovereign immunity
when the United States commences an action. Fed-
eral Savings & Loan Insurance Corp. v. Quinn, 419
F.2d 1014 (7th Cir. 1969) .”
Defendants assert the Government is bound, in
equity, to pay the value of improvements since it seeks
equitable relief. Defendants cite both United States
v. Desert Gold Mining Co., 448 F.2d 1230 (9th Cir.
1971), and Lacy v. United States, 216 F.2d 223 (5th
Cir. 1954), and conclude “[t]he Government, when
applying for relief in a court of equity is as much
bound to do equity as is a private litigant.” Jd. at
225. Even the Court in Lacy, however, agreed that
this principle cannot be pressed to the extent of waiv-
ing the United States’ sovereign immunity to suit by
way of counterclaim. Jd.
To interpose a counterclaim for improvements, de-
fendants must either, (1) establish the statutory con-
22 The Federal Rules of Civil Procedure, Rule 18(d) affirms
the general principle of sovereign immunity. It specifically
states Rule 13 (regarding compulsory and permissive counter-
claims) does not extend the right of a party to sue the United
States beyond the limits established by statute. Wright &
Miller, Federal Practice & Procedure: Civil § 1427, p. 189
(1971) ; United States v. Longo, 464 F.2d 918 (8th Cir. 1972).
72a
sent of the United States to the suit, or (2) state a
claim in recoupment arising out of the same transac-
tion as the claim of the United States, to which the
Government impliedly consents. United States v.
Chatham, 415 F.Supp. 1214 (D. Ga. 1976); United
States v. Holder, 292 F.Supp. 826 (D. Iowa 1968).
Defendants do not identify any statute by which the
Government consents to a counterclaim for improve-
ments. Consequently, the counterclaim fails if it does
not qualify as a claim in recoupment or set-off.
Without violating the doctrine of sovereign im-
munity, a defendant may assert, by way of recoup-
ment, any claim arising out of the same transaction
or occurrence as the original claim, in order to defeat
or reduce the Government’s recovery. Frederick v.
United States, 386 F.2d 481 (5th Cir. 1967); see
generally, Note, Governmental Immunity from Coun-
terclaim, 50 Colum. L. Rev. 505 (1950). Even within
the recoupment exception, however, the Government
“does not waive sovereign immunity to counterclaims
. . . Which claim relief in excess of or different in
kind from that sought by the Government.” In re
Oxford Marketing Ltd. v. Kallen, 444 F.Supp. 399,
403 (N.D. Ill. 1978). Accordingly, when the United
States sues to quiet title, the Government consents to
counterclaims by defendants seeking to quiet title in
their names. United States v. Phillips, 362 F.Supp.
462 (D. Neb. 1973).
A recoupment is the right of a defendant, “to cut
down the plaintiff’s demand either because the plaintiff
has not complied with some cross obligation . . . or
because he has violated some duty which the law ‘im-
poses upon him. ... 20 Am. Jur. 2d., Counterclaim,
Recoupment and Setof, § 1, p. 228 (1965). “It means
a deduction from a money claim whereby cross de-
.
73a
mands arising out of the same transaction are allowed
to compensate one another, the balance only to be re-
covered.” Jd. For example, in an ejectment action,
wherein plaintiff seeks mesne profits, the defendant
may counterclaim to recoup the value of improve-
ments. Deakyne v. Lewes Anglers, Inc., 204 F.Supp.
415 (D. Del. 1962). In an action by the United States
to collect an income tax deficiency, a counterdemand -
for recoupment of an overpayment of estate taxes
may be asserted in defense. Bull v. United States,
295 U.S. 247 (1935).
When the United States, however, does not seek
monetary relief, but only the return of property, the
court lacks jurisdiction to entertain a counterclaim
for monetary relief. In United States v. Ameco Elec-
tronic Corp., 224 F.Supp. 783 (E.D. N.Y. 1963), the
Government sought a replevin action to recover chat-
tels wrongfully withheld by the defendant. The court
dismissed the defendant’s counterclaim for damages
based on unjust enrichment because the claim did not
fall within the United States’ waiver of immunity
for claims in recoupment.
Recoupment and set-off . . . are restricted to a
reduction or in discharge of the principle claim.
To accomplish this result, the claim of both the
plaintiff and the defendant must be fungible ob-
ligations which can be set-off against each other.
. . . The Government is not seeking a judgment
for a sum of money but is asserting title to
certain chattels. The very nature of the action
makes it impossible to reduce or discharge the
claim by recoupment or set-off. Id. at 786.
Similarly, in United States v. Drinkwater, 434 F.
Supp. 457 (E.D. Va. 1977), the court dismissed
counterclaims seeking both damages and equitable
74a
relief because the United States sought only to quiet
its title to certain land.”
In this case, the United States seeks only to quiet
title to land lying within the original boundaries of
the Omaha Indian Reservation. The Government does
not request the payment of damages for trespass, or
for rents and profits related to the period of de-
fendants’ occupancy of the land.* The United States’
claim, therefore, does not involve a fungible obligation
against which defendant’s claim for improvements
may be off-set. Since the counterclaim. does not con-
stitute a claim in recoupment, this Court lacks juris-
diction to entertain the claim. No specific waiver of
sovereign immunity exists, express or implied, which
would permit defendant’s recovery of the value of im-
provements against the Government. United States v.
Gregory Park, Section II, Inc., 373 F.Supp. 317 (D.
N.J. 1974).
23 See also, United States v. Thurber, 376 F.Supp. 670 (D.
Vermont 1974), a mortgage foreclosure action by the United
States wherein the Court dismissed counterclaims for damages
because the United States did not seek a deficiency judgment
or damages.
% The Tribe seeks the payment of damages for trespass
upon Barrett Survey lands. But that claim of the Tribe was
severed and is not properly before this Court in these con-
75a
This Court is painfully aware of the record in this
case concerning the character of improvements made
by defendants and their predecessors. Wilson, 433 F.
Supp. at 69, 87. This Court further recognizes the
obvious principle of equity, that the owner of land
has not just claim to anything except the land itself.
The true owner should not, without compensation,
take valuable and permanent improvements con-
structed by a claimant in the erroneous belief that
he is the owner. While there is a strong policy argu-
ment for adjudicating defendant’s claim for improve-
ments in this action, “. . . Congress has not so de-
clared.” Shaw, 309 U.S. at 502. The absence of a
specific waiver of the Government’s sovereign im-
munity limits the jurisdiction of this Court to grant
such equitable relief.
This Court, therefore, need not address defendant’s
claim that the Nebraska Occupying Claimants Act
should be applied to determine the value of improve-
ments. Defendants stated in their brief:* “We do
not take the position that the Nebraska Occupying
Claimants Act governs directly. ... We contend only
that a Federal court sitting as a court of equity should
follow the Act in exercise of its general equitable
powers. ...” In support of this position, defendants
cite Leighton v. Young, 52 Fed. 439 (8th Cir. 1892).
Leighton did not concern improvements upon Indian
lands, nor was an Indian tribe or the United States
a plaintiff in that case. The Court of Appeals, how-
ever, recognized two relevant principles. First, the
Court of Appeals observed, “[t]he equity practice in
the courts of the United States is not regulated by
state statutes. Id. at 443. Second, the Court noted,
*% Defendant’s Reply Brief on Improvements, p. 12.
76a
“.. . under the Nebraska statute the value of im-
provements is simply declared to be a lien on the
land... .” Id. at 444. See, Neb. RR.S § 76-306
(1943). To be more precise, NOCA § 76-310 provides
that the title of the true owner may be divested by
the terms of the Act if the unsuccessful claimant is
not paid the value of his improvements.”
Clearly, state laws, such as the occupying claimants
laws, cannot be used by federal courts, sitting in
equity, to encumber or possibly divest the title of the
United States to Indian lands. The United States
Supreme Court held in this case, that “Indian title
is a matter of federal law and can be extinguished
only with federal consent... .” 99 S.Ct. at 2539.
Congress has not consented to the operation of NOCA
in respect to lands which the Government owns in
trust for the Omaha Indian Tribe.
V. MOTIONS FOR SUMMARY JUDGMENT
The defendants moved this Court, pursuant to Fed-
eral Rules of Civil Procedure, Rule 56, for its order
granting summary judgment in their favor. By these
motions, defendants request the Court to dismiss the
Tribe’s claims to lands outside the Barrett Survey
in Blackbird Bend and to quiet the title of defend-
26 Neb. R.R.S. § 76-310. The occupant or cJaimant shall in
no case be evicted from possession, or deprived of his right
in the premises, except as provided in sections 76-308 and 76-
309, and in case the successful claimant shal! neglect to elect
to take said real estate with improvements, or to convey the
same to the occupant or claimant, within such time as the
court shall direct, then decree shall be entered in favor of the
occupant or claimant upon his payment in court the value of
the real estate without improvements. Such decree shall have
the effect to transfer and convey to such occupant or claimant
title and rights of the successful claimant.
77a
ants to the same lands. Additionally, defendants seek,
by summary judgment, the dismissal of the Tribe’s
claims for damages for the alleged trespass of de-
fendants upon all Blackbird Bend lands.
Essentially, defendants repeat the arguments in
their motions for summary judgment that they made
in support of their claim to the “fee patented” land
within the Barrett Survey. First, defendants assert
they do not have the burden of proving their superior
title under 25 U.S.C. § 194. Since the Blackbird Bend
land outside the Barrett Survey was not part of the
original reservation established by the 1854 Treaty,
defendants allege the Tribe cannot demonstrate the
“previous possession or ownership” which triggers
the statute. Therefore, the Tribe has the burden of
proving its claim to Blackbird Bend land. Addi-
tionally, defendants assert that the Tribe’s claim to
land outside the original reservation arises out of
state law, not federal.
Since the Tribe does not claim Blackbird Bend land
as original tribal trust land, defendants conclude the
Tribe’s claim is barred by state laws of adverse pos-
session, statutes of limitation and laches. Because the
United States is not joined in the severed cases con-
cerning title to land outside the Barrett Survey, the
government’s sovereign immunity cannot preclude the
operation of the defenses of adverse possession, etc.
Defendants finally argue the Tribe admitted that de-
fendants and their predecessors occupied the Black-
bird Bend lands for forty years. They conclude no
genuine issue of material fact exists in dispute of
defendants’ claims by affirmative defenses.
In the Eighth Circuit, motions for summary judg-
ment are considered “a harsh remedy .. . to be
granted sparingly... .” McLain v. Meier, 612 F.2d
78a
849, 355 (8th Cir. 1979). Rule 56 provides that
summary judgment may be granted when the matters
considered by the court disclose “that there is no
genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter
of law.” See, Wright & Miller, Federal Practice &
Procedure, Civil § 2725 (1973). The moving party
has the burden of establishing the non-existence of
any genuine issue of fact, and all doubts are resolved
against him. Walling v. Fairmont Creamery Co.,
139 F.2d 318, 322 (8th Cir. 1943). The Court of
Appeals holds that a summary judgment should be
granted only if the truth is clear, Trayler v. Black,
Sivalls & Bryson, Inc., 189 F.2d 218 (8th Cir. 1951);
or unless the moving party demonstrates a right to a
judgment with such clarity as to leave no room for
controversy and he shows affirmatively that the op-
posing party cannot prevail under the circumstances,
Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir.
1972); or unless the facts entitling the movant to
summary judgment are admitted or are clearly
established.
The defendants failed to demonstrate the nonex-
istence of a genuine issue of material fact. One fac-
tual issue in dispute concerns the nature of river
movements in Blackbird Bend nearly one hundred
years ago. The river, by accretion or avulsion, could
have created new tribal lands in Blackbird Bend
which may not be acquired by adverse possession,
statutes of limitation or laches. Another genuine is-
sue of fact concerns the date of defendants’ entry
upon lands in Blackbird Bend and the sufficiency of
the acts defendants allege constitute an adverse pos-
‘session. Whether the Tribe ever acquiesced in defend-
ants’ possession of Blackbird Bend is an issue of fact.
79a
Moreover, with respect to lands within the Barrett
Survey which belong to the Tribe, the jury may find
the defendants committed a trespass. As long as “the
slightest doubt remains as to the fucts,” there exists a
genuine issue. Armco Steel Corp. v. Realty Invest-
ment Co., 273 F.2d 483 (8th Cir. 1967).
In view of the cumplexity of the evidence and
claims presented in this case through trial and ap-
peals lasting seven years, this Court cannot conceive
of an action less appropriately disposed of by sum-
mary judgment.
The foregoing constitutes this Court’s Findings of
Fact and Conclusions of Law.
BY THE CouRT:
/s/ Andrew W. Bogue
ANDREW W. BOGUE
Chief Judge
United States District Court
® ov. 8. coveenucer prierine orrice; 1963 425335 135
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