Omaha Indian Tribe, Treaty of 1854 with U.S. v. Wilson

• Decision Date: 18 June 1934
• Citation: 575 F.2d 620
• Parties: OMAHA INDIAN TRIBE, TREATY OF 1854 WITH the UNITED STATES (10 Stat. 1043), Organized pursuant to the Act of
• Court: U.S. Court of Appeals — Eighth Circuit

Page 620

575 F.2d 620

OMAHA INDIAN TRIBE, TREATY OF 1854 WITH the UNITED STATES

(10 Stat. 1043), Organized pursuant to the Act of

6/18/34 (48 Stat. 984; 25 USC 476) as

amended, Appellant, v. Roy Tibbals WILSON, Charles G. Lakin, Florence Lakin, R. G.

P. Incorporated, an Iowa corporation, Harold Jackson, Otis

Peterson, Travelers Insurance Company, the State of Iowa,

Darrell L., Harold, Harold M. and Luea Sorenson, State

Conservation Commission of the State of Iowa, Appellees.

UNITED STATES of America, Appellant, v. Roy Tibbals WILSON, Charles G. Lakin, Florence Lakin, R. G.

P. Incorporated, an Iowa corporation, Harold

Jackson, Otis Peterson, Travelers

Insurance Company and the

State of Iowa, Appellees.

Nos. 77-1384 and 77-1387.

United States Court of Appeals Eighth Circuit.

Submitted June 13, 1977.

Decided April 11, 1978.

Rehearing and Rehearing En Banc Denied May 2, 1978.

William H. Veeder, Washington, D. C., for Omaha Indian Tribe (appellant).

James W. Moorman, Acting Asst. Atty. Gen., Edmund B. Clark (argued) and Edward J. Shawaker, Attys., Washington, D. C., Dept. of Justice, on brief, for United States (appellant).

Edson Smith (on brief), of Swarr, May, Smith & Andersen, Omaha, Neb., and Peter J. Peters (on brief), of Peters, Campbell & Pearson, Council Bluffs, Iowa, argued; Robert H. Berkshire, Omaha, Neb., Thomas R. Burke and Lyman L. Larsen, Omaha, Neb., Bennett Cullison, Jr., Harlan, Iowa, Lowell C. Kindig, Sioux City, Iowa, and Richard C. Turner, Atty. Gen., and James C. Davis, Asst. Atty. Gen., Des Moines, Iowa, on brief, for appellees.

Before LAY, STEPHENSON and HENLEY, Circuit Judges.

LAY, Circuit Judge.

On March 16, 1854, the Omaha Indian Tribe entered into a treaty with the United States in which certain lands, including 2,900 acres of land located in the then Territory of Nebraska in an area known as Blackbird Bend, were reserved by the Tribe as part of an agreement which ceded to the United States all other land west of the "centre of the main channel of said Missouri river . . . ." ¹ Act of March 16 1854, Art. 1, 10 Stat. 1043. At the time the Omaha Indian Reservation was established the reserved land within Blackbird Bend was situated on the west side of the Missouri River. However, by 1923 the river had moved more than two miles to the west of the original boundary line so that much of the land contained within the original Blackbird Bend area was situated on the east side of the river. The defendants assert that early movements of the Missouri River had completely washed away the Reservation lands and that the land now existing within the former boundaries of the Barrett Survey is soil which has accreted to the Iowa riparian land.

As a result of this dispute the United States and the Omaha Indian Tribe, a duly organized corporate body, in 1975 sought equitable relief asserting their right to the 2,900 acres of land now situated in Monona County, Iowa. The United States throughout this litigation acts in the capacity of trustee of the Tribe's reservation lands. ² The defendants claim title to the land in dispute and seek by way of counterclaims to quiet title in their names. The defendants are Roy Tibbals Wilson, Harold Jackson, a tenant of Roy Tibbals Wilson, Harold Sorenson, Luea Sorenson, Darrell L. Sorenson, Harold M. Sorenson, Charles Lakin, Florence Lakin, the State of Iowa and the State Conservation Commission, R.G.P. Incorporated, Travelers Insurance Company, mortgagee of R.G.P., and Otis Peterson, a tenant of R.G.P.

From at least the 1940's until April 2, 1975, the defendants and their predecessors in title had occupied, cleared and cultivated the land in dispute. After April 2, 1975, with the assistance of the Bureau of Indian Affairs and with the approval of the United States, the Omaha Indian Tribe seized possession of the land and is presently farming it. After the Tribe had seized the land the United States District Court, the Honorable Edward J. McManus presiding, granted a preliminary injunction permitting occupancy of the land by the Tribe during the pendency of this litigation, but requiring certain accounting procedures pertaining to the crops grown on the land be instituted. Following trial and entry of judgment in favor of the defendants, this court on May 13, 1977, entered a stay pending appeal maintaining in effect the terms of the district court's preliminary injunction.

After a lengthy trial the district court, the Honorable Andrew W. Bogue presiding, found that the boundary of the Omaha Indian Reservation had shifted with the movements of the Missouri River and quieted title in the defendant landowners. The court found that the plaintiffs had failed to prove that the river movements were controlled by the doctrine of avulsion and held that the river had changed by reason of the erosion of reservation land and accretion to Iowa riparian land. United States v. Wilson, 433 F.Supp. 67 (N.D.Iowa 1977). The district court supplemented its findings on the merits with an opinion resolving choice of law problems, setting forth principles governing avulsion and accretion and discussing the allocation of the burden of proof. United States v. Wilson, 433 F.Supp. 57 (N.D.Iowa 1977).

I. The Issues.

The dispute centers on the ownership of land in an area known as Blackbird Bend which was surveyed in 1867 by T. H. Barrett ³ on behalf of the General Land Office of the United States. ⁴ The basic issue on appeal is whether the boundary of the reservation remained at its 1854 location despite the significant changes in the location of the Missouri River since that time.

We vacate the judgment of the district court rendered in favor of the defendants; we find the trial court erroneously placed the burden of proof on the Omaha Indian Tribe and failed to properly apply governing principles of federal law relating to avulsion and accretion; we hold the evidence is too speculative and uncertain to show that the reservation boundary shifted by reason of accretion and that the defendants have failed to overcome the presumptive right of possession and title in the Tribe to the reservation lands.

II. The Historical Facts.

The Treaty of 1854 established the eastern boundary of the reserved land at the center of the main channel of the Missouri River. ⁵ Because the exact location of the thalweg ⁶ of the Missouri River could not now be established and since the Barrett Survey was conducted only a few years after the reservation was established, the trial court accepted the Barrett Survey as representing the original location of the reservation's boundary. ⁷ See Plate I.

From 1854 until sometime near 1875 it is generally accepted that the Missouri River moved east until it reached the Iowa easterly high bank. ⁸ The evidence shows the river was approximately 800 feet wide at that time. The first controversial movement of the river in this case occurred after it reached its easterly position against the high bank. ⁹ By 1879 a survey conducted by the Missouri River Commission showed the river, at high flood stage, to be almost 10,000 feet wide covering as much as two-thirds of the Barrett Survey meander lobe. The thalweg had shifted from against the easterly high bank to a point nearly 6,000 feet to the west. See Plate II.

After 1879 the river moved to the northeast until it reached the Iowa northerly high bank ¹⁰ sometime near 1912. See Plate III. The second dispute between the parties involved the movement of the river away from its northerly high bank location to a location significantly to the south in the period between about 1912 and 1923. See Plate IV. By 1923 almost the entire peninsula described by the Barrett Survey had been cut off by the river's movement.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[See following illustration.]

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[See following illustration.]

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

III. Choice of Law.

At trial the Tribe and the government asserted that federal law should control while the defendants contended that Iowa law should have been applied. The district court, however, applied Nebraska law in evaluating the facts of the case. On appeal the Tribe and the government renew their assertion that federal law should be applied in the resolution of this case. We hold that the governing principles of federal law vary significantly with the trial court's construction of state law and that the court erred in failing to apply that federal law.

A. Interstate Boundaries.

In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977), the Supreme Court reaffirmed the basic rule that the laws of the several states determine the ownership of the banks and shores of waterways. Id. at 378-79, 97 S.Ct. 582. However, the Court recognized an important caveat to this rule:

If a navigable stream is an interstate boundary, this Court, in the exercise of its original jurisdiction over suits between States, has necessarily developed a body of federal common law to determine the effect of a change in the bed of the stream on the boundary.

Id. at 375, 97 S.Ct. at 589. ¹¹

As the Supreme Court noted in Arkansas v. Tennessee, 246 U.S. 158, 176, 38 S.Ct. 301, 306, 62 L.Ed. 638 (1918):

(T)hese dispositions are in each case limited by the interstate boundary, and cannot be permitted to press back the boundary line from where otherwise it should be located.

Cf. St. Louis v. Rutz, 138 U.S. 226, 250, 11 S.Ct. 337, 34 L.Ed. 941 (1891).

Federal common law is applicable even where only a single state is involved in a controversy with a private party, see Cissna v. Tennessee, 246 U.S. 289, 38 S.Ct. 306, 62 L.Ed. 720 (1918), or where only private parties are involved, see Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202 (1938); Committee for Consideration of Jones...