540 F.Supp. 592 (D.Neb. 1982), Civ. 79-0-411, Nebraska Public Power Dist. v. 100.95 Acres of Land in Thurston County

Docket Nº:Civ. 79-0-411
Citation:540 F.Supp. 592
Party Name:Nebraska Public Power Dist. v. 100.95 Acres of Land in Thurston County
Case Date:June 04, 1982
Court:United States District Courts, 8th Circuit, District of Nebraska

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540 F.Supp. 592 (D.Neb. 1982)

NEBRASKA PUBLIC POWER DISTRICT, a public corporation and political subdivision of the State of Nebraska, Plaintiff,


100.95 ACRES OF LAND IN COUNTY OF THURSTON, Hiram Grant, et al., Unknown Owners, United States of America, and Department of the Interior, Defendants.

Civ. No. 79-0-411.

United States District Court, D. Nebraska.

June 4, 1982

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[Copyrighted Material Omitted]

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James DeMars, Lincoln, Neb., for plaintiff.

Michael D. Gooch, Inter-Tribal Legal Services, Winnebago, Neb., Paul W. Madgett, Asst. U. S. Atty., Omaha, Neb., for defendants.


SCHATZ, District Judge.


This civil action arose as a result of efforts by the plaintiff, Nebraska Public Power District (hereinafter N.P.P.D.), to construct a high-voltage electric transmission line over a portion of the Winnebago Indian Reservation (hereinafter Reservation) in Thurston County, Nebraska. Pursuant to 25 U.S.C.A. s 357, N.P.P.D. asserts that the states have been granted the right to condemn Indian trust lands (hereinafter trust lands) under certain circumstances. N.P.P.D. seeks to obtain via condemnation proceedings a perpetual easement or right-of-way across twenty-nine tracts of land located within the exterior boundaries of the Reservation for the purpose of constructing, operating and maintaining the electric transmission line referred to above. The Winnebago Tribe of Nebraska (hereinafter Tribe), several individual Indian defendants and the United States all challenge and dispute the legal authority of N.P.P.D. to condemn the lands at issue in this litigation.

On November 3, 1980, a final pretrial conference was held before the United States Magistrate. In the resulting pretrial order, the parties agreed inter alia to accept as established for purposes of this case certain uncontroverted facts, and specified the unresolved legal issues which remain to be determined by the Court. Trial to the Court was held on December 1, 1981, at which evidence offered by plaintiff and defendants was received, and the matter was submitted upon the record. Also on the day of trial, the parties entered into and filed a stipulation primarily addressing the historical progression of land ownership by the Tribe. After careful consideration of the pleadings, exhibits, briefs, documents and arguments of counsel, the Court now enters this memorandum as its findings of fact and conclusions of law.


1) N.P.P.D., a public corporation and political subdivision of the State of Nebraska, is engaged in the generation, transmission and distribution of electric energy. N.P.P.D. is organized under the provisions of Chapter 70, Article 6, Reissue Revised Statutes of Nebraska 1943, and is authorized to exercise the power of eminent domain under Nebraska law.

2) N.P.P.D. obtained permission from the Nebraska Public Service Commission and the Nebraska Power Review Board to construct the proposed high voltage transmission line. Additionally, N.P.P.D. obtained through Iowa Public Service Company certain permits necessitated by the proposed interconnection between the substations of the respective utilities.

3) The Winnebago Tribe of Nebraska, a federally recognized tribe of Indians exercising powers of self-government, was organized under the Indian Reorganization Act of 1934 (hereinafter I.R.A.), 48 Stat. 984, 25 U.S.C.A. ss 461 et seq. On February 29, 1936, the Tribe duly ratified its constitution, and the Secretary of the Interior approved the tribal constitution on April 3, 1936. The Tribe occupies a reservation located in approximately the northern half of Thurston County, Nebraska. This Reservation has not been disestablished by any Act of Congress or presidential proclamation. The Tribe is governed by an elected tribal council.

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4) Since 1936 the Tribe, with varying degrees of success, has attempted to repurchase those portions of the reservation owned by non-Indians, and has sought to consolidate within its reservation the heirship interests held by the descendants of original Indian allottees.

5) The United States is an indispensable party in an action where condemnation is exercised against allotted trust land (hereinafter allotted land). The Department of the Interior, as trustee for the allotted land, is joined as a defendant. The Tribe has an interest in certain of the tracts of land sought to be condemned and is, therefore, named as a defendant herein. The remaining defendants are individual members of the Tribe who hold interests in the parcels of allotted land under condemnation in this action.

6) The tracts sought to be condemned by N.P.P.D. were originally tribal lands which were allotted by the United States to individual Indians prior to March 3, 1901, pursuant to the General Allotment Act, 24 Stat. 388, 25 U.S.C.A. s 348, or the treaty of March 8, 1865, between the United States and the Tribe, 14 Stat. 671. Legal title to these lands is held by the United States in trust for the heirs of the original Indian allottees and the Tribe.

7) Prior to commencement of the instant condemnation action, several individual Indians deeded to the United States in trust for the Tribe undivided interests of varying quanta in lands along the route of the proposed transmission line, while reserving life estates in those lands. The Department of the Interior, Bureau of Indian Affairs, complied with its regulations in processing, recording and approving these deeds. As a result of such conveyances by individual Indians, the Tribe claims to own interests in approximately fifteen of the twenty-nine tracts sought to be condemned by N.P.P.D. The individual Indian defendants herein number several hundred and hold undivided equitable interests in the twenty-nine parcels sought to be condemned.

8) The electric transmission line proposed by N.P.P.D. would be constructed across and over specific tracts of land in each of which one or more defendants hold an interest. Said power line would be a single circuit, 345,000 volt transmission line connecting an N.P.P.D. substation near Hoskins, Nebraska, to an Iowa Public Service company substation near Raun, Iowa.

9) The Tribal Council, acting pursuant to the I.R.A. and the tribal constitution, has passed one or more resolutions opposing construction of the proposed power line and opposing the condemnation of tribal trust land (hereinafter tribal land). Neither the answering individual defendants nor the Secretary of the Interior has consented to the granting of easements over, or the condemnation of, the tracts of land in question.

10) Although N.P.P.D. communicated with the Bureau of Indian Affairs regarding the matter of obtaining easements over the parcels of land now sought to be condemned, N.P.P.D. did not conduct any negotiations with the individual Indian allottees.


The unresolved questions of law remaining to be determined by the Court were broadly framed by the parties in the pretrial order as follows:

1) Whether N.P.P.D. has the legal authority to condemn the tracts of land in which the answering individual defendants hold an interest.

2) Whether N.P.P.D. has the legal authority to condemn the tracts of land in which the Tribe holds an interest.


Title 25, United States Code Annotated, Section 323, provides in part:

The Secretary of the Interior be, and he is empowered to grant rights-of-way for all purposes, subject to such conditions as he may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes, communities, bands or nations, or any lands now or hereafter owned, subject to restrictions against alienation, by individual Indians or Indian

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tribes, communities, bands or nations, ....

Title 25, United States Code Annotated, Section 324, in pertinent part provides:

No grant of a right-of-way over and across any lands belonging to a tribe organized under sections 461-473 and 474-479, of this title ... shall be made without the consent of the proper tribal officials. Rights-of-way over and across lands of individual Indians may be granted without the consent of the individual Indian owners if ... (4) the owners of interests in the land are so numerous that the Secretary finds it would be impracticable to obtain their consent, and also finds that the grant will cause no substantial injury to the land or any owner thereof.

Title 25, United States Code Annotated, Section 357 states in full as follows:

Lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.

Title 25, United States Code Annotated, Section 465, provides in part:

The Secretary of the Interior is hereby authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trusts or otherwise restricted allotments, ... for the purpose of providing land for Indians.

Title 25, United States Code Annotated, Section 476, in part states:

In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: ... to prevent the sale, disposition, lease or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State and local Governments. 1


The overriding question to be resolved by the Court in this action is whether 25 U.S.C.A. s 357, in light of the more recent Indian Right-of-Way...

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