# Petition — United States v. Wilson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0738%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1025 ## Text ee et mee ae atin teen ne panne, 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 EL Sea e Oe ae LAT tS TS la iL cae eiaaiiieiplaadianetont= lba ae Tee OR Re SRN Se 18a a a edetiialess sidbdilasanicapiit 24a 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 ots Ou > 4 7 _ 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 F oS * {3 = ; ; ; be Sane a cr Berlin oe Ee oT?" CIA D 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 - DY Abandoned Lands, Date of Last Title a4 Transfer Prior to the Intry of the i Mineouri River Upon Said Land ve w Larxis Which Title Have Always Been in the GQaaha Indian Tribe Since 184 Allotted Lands Relinquished Rack to the Gnaha Indien Tribe iOWA ta — vViNOoNna Ny ry . %. ‘tae . “te, ¢. %., } \ ~ ‘] % 2; of * Fe = a = Kaw Te es fe | Y 4 . > VX ao eae cheane/ ——~e, i sf Pa - S ae Ts he Tree . Tr “ -_ = 3 Qa , , . ~ y : , * . ca - wer tle at i ne - > “os . ~ ef ;" . - ee " . p 34 ° Se jn av? : gS a= Z " ote 7, - ~ 2 ake ~” () N\ ( ( } l x ' \ “XX 7. j fe ov e an “Co ] +. li PLATE 8 The 1944-1945 River th rg2aceet? EXHIBI TRACT | BLACKBIRO 1904-1965 MISSOURI RIVER F | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0738%3A1. Public record. Not legal advice.