719 F.2d 956 (8th Cir. 1983), 82-2042, Nebraska Public Power Dist. v. 100.95 Acres of Land in Thurston County, Hiram Grant

Docket Nº:82-2042.
Citation:719 F.2d 956
Party Name:NEBRASKA PUBLIC POWER DISTRICT, a Public Corporation and Political Subdivision of the State of Nebraska, Appellant, v. 100.95 ACRES OF LAND IN COUNTY OF THURSTON, HIRAM GRANT, et al; Unknown Owners; United States of America and Department of The Interior, Appellees.
Case Date:October 28, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 956

719 F.2d 956 (8th Cir. 1983)

NEBRASKA PUBLIC POWER DISTRICT, a Public Corporation and

Political Subdivision of the State of Nebraska, Appellant,

v.

100.95 ACRES OF LAND IN COUNTY OF THURSTON, HIRAM GRANT, et

al; Unknown Owners; United States of America and

Department of The Interior, Appellees.

No. 82-2042.

United States Court of Appeals, Eighth Circuit

October 28, 1983

Submitted May 17, 1983.

Page 957

Barlow, Johnson, DeMars & Flodman, Lincoln, Neb., for appellant.

Michael D. Gooch, Papillion, Neb., for appellees.

Before LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges.

FAGG, Circuit Judge.

This case concerns the authority of a public utility to condemn tracts of land held in trust by the United States for individual Indians and for Indian tribes. We hold that pursuant to 25 U.S.C. Sec. 357 the utility has the authority to condemn land allotted in severalty to Indians but not land in which the Indian tribe holds an interest.

This litigation arose from a plan of Nebraska Public Power District (NPPD) to construct an electric transmission line across the Winnebago Indian Reservation. The Winnebago Tribe has opposed construction of the proposed power line. NPPD brought this action in federal district court to condemn a right-of-way across twenty-

Page 958

nine tracts of land within the reservation. The tracts sought to be condemned by NPPD were allotted by the United States to individual Indians pursuant to either the Indian General Allotment Act, 24 Stat. 388, 25 U.S.C. Sec. 348, or the treaty between the United States and the Winnebago Tribe. 14 Stat. 671. Shortly before this action was filed, several individual Indian allottees deeded to the United States, in trust for the tribe, certain undivided future interests in land along the route of the proposed transmission line. The allottees reserved life estates in all of the deeded land. Thus, the land sought to be condemned by NPPD is of two types: (1) allotted land in which only individual Indians hold interests; and (2) land in which the tribe holds certain undivided future interests. The district court held that with respect to the allotted land, NPPD's condemnation action failed because 25 U.S.C. Sec. 357 had been impliedly repealed in part by the more recent Indian Right-of-Way Act of 1948, 25 U.S.C. Secs. 323-28, which requires that consent to a right-of-way be granted by the Secretary of the Interior, and in certain cases, by the individual Indian allottees. Nebraska Public Power District v. 100.95 Acres of Land in County of Thurston, 540 F.Supp. 592, 600-02 (D.Neb.1982). Neither the individual Indian allottees nor the Secretary of the Interior has consented to the granting of a right-of-way over the disputed tracts of land. With respect to the land in which future interests had been conveyed to the tribe, the district court held that this was tribal land which could not be condemned pursuant to 25 U.S.C. Sec. 357. Id. at 603-04. We reverse the holding of the district court concerning the allotted land, and affirm the holding concerning the tribal land.

I. ALLOTTED LAND

25 U.S.C. Sec. 357, enacted by Congress in 1901, provides 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.

Section 357 clearly authorizes the judicial condemnation of a right-of-way across allotted Indian land for the construction of an electric transmission line. The question on appeal is whether, as the district court held, section 357 has been impliedly repealed in part by the more recently enacted Indian Right-of-Way Act of 1948, 25 U.S.C. Secs. 323-28, which conditions condemnation of a right-of-way across allotted Indian land upon consent of the Secretary of Interior, and in certain cases, upon consent of the individual allottee.

To determine whether an earlier statute has been impliedly repealed by a later one, we are guided by familiar principles. The intent of Congress must be "clear and manifest" to support an implied repeal. Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). "The cardinal rule is that repeals by implication are not favored." Id. Absent affirmative evidence of congressional intent to repeal the earlier statute "the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable." Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41...

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