Bear v. United States

• Citation: 611 F. Supp. 589
• Decision Date: 06 June 1985
• Docket Number: CV 82-0-200,No. CV 82-0-199,C 82-4052 and C 82-4053.,CV 82-0-199
• Parties: Robin Ann BEAR, et al., Plaintiffs, v. The UNITED STATES of America, et al., Defendants. The WINNEBAGO TRIBE OF NEBRASKA, Plaintiff, v. The UNITED STATES of America, Defendant. Robin Ann BEAR, et al., Plaintiffs, v. The UNITED STATES of America, et al., Defendants. The WINNEBAGO TRIBE OF NEBRASKA, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Nebraska

611 F. Supp. 589

Robin Ann BEAR, et al., Plaintiffs, v. The UNITED STATES of America, et al., Defendants.

The WINNEBAGO TRIBE OF NEBRASKA, Plaintiff, v. The UNITED STATES of America, Defendant.

Robin Ann BEAR, et al., Plaintiffs, v. The UNITED STATES of America, et al., Defendants.

The WINNEBAGO TRIBE OF NEBRASKA, Plaintiff, v. The UNITED STATES of America, Defendant.

Nos. CV 82-0-199, CV 82-0-200, C 82-4052 and C 82-4053.

United States District Court, D. Nebraska.

June 6, 1985.

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Charles L. Smith, Telpner & Smith, Council Bluffs, Iowa, Patrick Kennison, Kutak, Rock & Huie, Omaha, Neb., Dale White, Fredericks & Pelcyger, Boulder, Colo., for plaintiffs.

Paul W. Madgett, Asst. U.S. Atty., Douglas P. Misterek, U.S. Army Corps of Engineers, Aaron Hostyk, Office of Counsel Corps of Engineers, Omaha, Neb., Evan L. Hultman, U.S. Atty., Asher E. Schroeder, Asst. U.S. Atty., Cedar Rapids, Iowa, John P. Sarcone, Asst. Atty. Gen., Des Moines, Iowa, George F. Madsen, F. Joseph Du-Bray, Paul D. Lundberg, Sioux City, Iowa, for defendants.

MEMORANDUM AND ORDER

BEAM, District Judge.

These matters are before the Court upon the defendants' joint motion to reconsider the Court's denial of their motions for summary judgment (filing 38 in CV 82-0-200; filing 49 in C 82-4053; filing 61 in C 82-4052; and filing 62 in CV 82-0-199). A hearing was held on the motion on November 8, 1984. The Court, being fully advised in the premises, now finds that the motion should be sustained, in part.

Summary judgment should be granted "only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). Even under this standard, the Court finds that in the instant cases a substantial number of claims may be resolved through summary judgment.

The Winnebago Tribe of Nebraska and various individuals are the plaintiffs in four cases which have been consolidated in this Court. In CV 82-0-200 (D.Neb.) and C 82-4053 (D.Iowa) the Tribe contends that a 1972 stipulation which purported to waive its rights to contest condemnation actions against lands on the eastern bank of the Missouri River is void. In CV 82-0-199 (D.Neb.) and C 82-4052 (D.Iowa) the heirs of the original allottees of certain parcels¹ are suing the United States and private corporations to quiet title to tracts of accretion land² on the Nebraska/Iowa border.

The defendants are the United States, the Army Corps of Engineers, the State of Iowa, Briar Cliff College, and the Sinsinawa Dominican Congregation of the Most Holy Rosary of Sinsinawa, Wisconsin. They contend, among other things, that the plaintiffs' claims are barred by the doctrines of res judicata, collateral estoppel, statutes of limitation and laches.

The facts surrounding the claims of the allottees will be presented first. In 1872, forty-acre parcels in Thurston County, Nebraska, were patented to David Horn, Reuben Decora³ and one Mrs. Jackson.⁴ At such time only the Jackson parcel was riparian. At some point in time between 1872 and 1906 the Missouri River changed course towards the west and all three parcels became riparian. Then, at some time prior to 1926 the River receded,⁵ adding accretions to the lots.

In 1927, 1928 and 1929 the heirs of Horn, Decora and Jackson conveyed their land by warranty deed to Thomas Ashford. The Horn deed expressly provided that both accretions and the original allotment were to be conveyed. Accretion lands were not mentioned in the other two deeds.

The individual allottees contend that title to the land which accreted to the Decora and Jackson parcels⁶ did not pass to Ashford because conveyance of accretion land was not explicitly provided for in the warranty deeds.

When accretion lands are added by natural forces, the owner of the original body of land acquires title to the new land that is formed. Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 (1890); United States v. Wilson, 523 F.Supp. 874 (N.D.Iowa 1981) (lands added by accretion become the property of the riparian owner); Wiltse v. Bolton, 132 Neb. 354, 272 N.W. 197 (1937); Mercurio v. Duncan, 131 Neb. 767, 269 N.W. 901 (1936); see generally 3 American Law of Property § 1527 (A.J. Casner ed. 1952). According to the "doctrine of title by accretion," when the land conveyed is bounded by water, it is to be regarded as the expectancy of both grantor and grantee that it should continue to be so bounded. See, e.g., Jefferis, 134 U.S. at 189, 10 S.Ct. at 520; Meyers v. Mathies, 7 So. 605 (La. 1890); LeBeau v. Gavin, 37 Mo. 556 (1866). "It is well settled law that a conveyance of lands bordered by a river and intended to be riparian ... carries with it all accreted lands." Choctaw and Chickasaw Nations v. Cox, 251 F.2d 733, 735 (10th Cir.1958). Therefore, title to accretion lands unless preserved passes with any conveyance of the land to which it is appurtenant. Illinois Central R.R. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892); United States v. 11,993.32 Acres of Land, 116 F.Supp. 671, 678 (D.N.D.1953) ("if there is an intention here to limit the conveyance by the exclusion of accretions, such intentions could easily have been evidenced by including the words `without accretions' in the patents"); Jackson v. Montana, 181 Mont. 257, 593 P.2d 432, 436 (1979) (where grantors' conveyance did not except or reserve the accretions, the accretions were conveyed to the grantees); Sioux City v. Chicago & Northwestern Railroad, 129 Iowa 694, 106 N.W. 183 (1906); DeLong v. Olsen, 63 Neb. 327, 88 N.W. 512 (1901). This rule applies to lands included within Indian reservations. Choctaw and Chickasaw Nations v. Seay, 235 F.2d 30 (10th Cir. 1956).

The plaintiffs make much of the fact that accretions were expressly provided for in the deed conveying the Horn allotment. The Court refuses to find that the state of mind of Horn's heirs in some way affected the state of mind of the grantors of the Decora and Jackson parcels. One could as easily conclude that the grantors of the Decora and Jackson lot intended to convey the accretions as Horn did, but being aware of applicable law, chose to do so by remaining silent on the matter. In all likelihood, grantors' attorney in the Horn grant was a more thorough practitioner.

The court, having reviewed all the evidence provided by the plaintiffs in the light most favorable to them, is compelled to apply here the well-established principle that accretions ordinarily pass upon a conveyance of a parcel of real estate absent a specific reservation of title. Accordingly, the allottees' claims with respect to accretion lands will be denied. Summary judgment will be granted accordingly.

Facts predicate to deciding the Tribe's claims follow.⁷ In 1970 the United States initiated condemnation actions against Winnebago treaty lands⁸ (tracts 119 and 210) along the eastern bank of the Missouri River. See United States v. 1,716.18 Acres of Land, No. 70-C-3014-W, slip op. at 11 (N.D.Iowa 1971). The treaty lands were being appropriated for a recreational facility.

The Tribe answered and filed a cross petition challenging the United States' authority to condemn the land in question. Shortly thereafter the Tribe agreed to relinquish title to the subject property. A stipulation was signed by the attorney for the Tribe⁹ and the State of Iowa, but was not signed by an official of the United States government. The land was later condemned by the United States.

The Native American plaintiffs contend that the lack of federal approval renders the June 13, 1973, stipulation void under the Indian Non-Intercourse Act, 25 U.S.C. § 177. That statute provides:

No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto of any Indian nation or Tribe of Indians shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.

25 U.S.C. § 177.¹⁰ See also Oneida Indian Nation v. County of Onedia, 414 U.S. 661, 668-69, 94 S.Ct. 772, 777-78, 39 L.Ed.2d 73 (1974) (Indian title can be extinguished only with consent of the federal government); United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 345, 62 S.Ct. 248, 251, 86 L.Ed. 260 (1941) (same, citing cases). The Tribe contends that the above-mentioned stipulation is void because it was not approved by Congress or the Secretary of the Interior.

The defendants in this action do not contend that a government official signed or constructively approved of the stipulation in question. The defendants argue that (1) under Federal Power Com'n. v. Tuscarora Indian Nation, 362 U.S. 99, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960), the United States need not obtain congressional approval to condemn the land in question; and (2) in the event that this Court rejects their first argument, counsel for the Tribe, as constructive agent for the Bureau of Indian Affairs (BIA), was authorized to approve the stipulation. These issues must be considered in light of the distinctive principles which govern federal government relations with the Indians.

The United States holds most Indian land in trust for Indians and their tribes. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 574, 5 L.Ed. 681 (1823) (establishing the principle that tribes do not hold, and thus cannot convey, fee interests in the lands they occupy¹¹); Jackson v. Porter, Fed.Cas. No. 7, 143 (C.C.D.N.Y.1825) (the seisin of lands of Indian tribes is in the sovereign). In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831),...