Black Hills Institute v. Dept. of Justice

• Decision Date: 03 February 1993
• Docket Number: Civ. No. 92-5070.
• Parties: BLACK HILLS INSTITUTE OF GEOLOGICAL RESEARCH; and Black Hills Museum of Natural History Foundations, Inc., a nonprofit corporation, Plaintiffs, v. The UNITED STATES of America, DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of South Dakota

812 F. Supp. 1015

BLACK HILLS INSTITUTE OF GEOLOGICAL RESEARCH; and Black Hills Museum of Natural History Foundations, Inc., a nonprofit corporation, Plaintiffs, v. The UNITED STATES of America, DEPARTMENT OF JUSTICE, Defendant.

Civ. No. 92-5070.

United States District Court, D. South Dakota, W.D.

February 3, 1993.

Patrick Duffy, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, SD, for plaintiffs.

Kevin V. Schieffer, U.S. Atty., Sioux Falls, SD, for defendant.

MEMORANDUM OPINION

BATTEY, District Judge.

NATURE AND PROCEDURAL HISTORY

This matter comes before the Court on cross motions for summary judgment filed pursuant to Fed.R.Civ.P. 56.

The case has had a somewhat convoluted and checkered past. It has resulted in two decisions¹ of the Eighth Circuit Court of Appeals involving motions for possession of the tyrannosaurus rex skeleton known by the nickname "Sue."

RELEVANT FACTS

The facts upon which this Court's decision will be based are simple and straightforward. They are as follows:

1. The parties are disputing possession and ownership of a fossilized skeleton of a tyrannosaurus rex dinosaur approximately 65 million years old.

2. The fossil was taken from Indian trust land within the exterior boundaries of the Cheyenne River Sioux Tribe Reservation of South Dakota. The legal description of the land from which the fossil was taken is Section 32, Township 15 North, Range 18 East, Ziebach County, South Dakota.

3. Legal title to the land is held by the United States in trust status for Maurice A. Williams, an Indian. The instrument creating the trust status was a trust patent deed dated September 23, 1969. It is set forth fully as follows:

340 22652

THE UNITED STATES OF AMERICA

To all to whom these presents shall come, Greeting.

WHEREAS, an Order of the authorized officer of the Bureau of Indian Affairs is now deposited in the Bureau of Land Management, directing that, pursuant to the Act of June 18, 1934 (48 Stat. 984), a trust patent issue to Maurice A. Williams, a Cheyenne River Indian, for the following described land:

Black Hills Meridian, South Dakota T. 14 N., R. 18 E Sec. 4, Lots 1, 2, 3, and 4, S½N½ and SW¼; Sec. 5, Lot 1; Sec. 21, NE¼ T. 15 N., R. 18 E Sec. 32, All; Sec. 33, All.

The area described contains 1,959.05 acres.

NOW KNOW YE, That the UNITED STATES OF AMERICA, in consideration of the premises, hereby declares that it does and will hold the land above described (subject to all statutory provisions and restrictions) for the period of twenty-five years, in trust for the sole use and benefit of the said Indian, and at the expiration of said period the United States will convey the same by patent to the said Indian in fee, discharged of said trust and free from all charge and encumbrance whatsoever; but in the event said Indian dies before the expiration of said trust period, the Secretary of the Interior shall ascertain the legal heirs of said Indian and either issue to them in their names a patent in fee for said land, or cause said land to be sold for the benefit of said heirs as provided by law.

IN TESTIMONY WHEREOF, the undersigned authorized officer of the Bureau of Land Management, in accordance with the provisions of the Act of June 17, 1948 (62 Stat. 476) has, in the name of the United States, caused these letters to be made Patent, and the Seal of the Bureau to be hereunto affixed.

GIVEN under my hand, in Billings, Montana, the TWENTY-THIRD day of SEPTEMBER in the year of our Lord one thousand nine hundred and SIXTY-NINE and of the Independence of the United States the one hundred and NINETY-FOURTH.

By /s/ Eugene H. Newell Manager, Montana Land Office.

Patent Number XX-XX-XXXX

The instrument provides that the United States is to hold the land for a period of twenty-five years in trust for the sole use and benefit of Maurice A. Williams, and at the expiration of said period, the United States would convey the same by patent to Maurice A. Williams or his heirs in fee. The tract became known in the Bureau of Indian Affairs records as 340 (reservation number) 6309 (tract number). The document is a "trust patent" document.² The trust status will expire on September 23, 1994.

4. The fossil was discovered on August 12, 1990, by employees of plaintiff Black Hills Institute of Geological Research (BHIGR). It was observed with portions of the fossil protruding from beneath the surface. Excavation of the fossil was commenced by BHIGR on August 14, 1990, with the removal completed on September 1, 1990.

5. On August 27, 1990, BHIGR issued a check to Maurice Williams for $5,000, alleging that it was "for title to the fossil and the right to excavate the fossil from his land."

6. BHIGR removed the fossil without the knowledge or consent of the agencies of the United States. No permit or other permission was obtained from the United States Department of Interior or other governmental agency for either the excavation or the removal of the fossil.

ISSUE

The ultimate issue is whether BHIGR obtained ownership to the fossil while the land from which it was excavated was held by the United States in its trust capacity.

DISCUSSION

I COURT'S JURISDICTION

The Court sua sponte raised the issue of its jurisdiction³ to determine ownership of the fossil based upon the changing posture of the pleadings. The complaint filed May 22, 1992, sought to quiet title to the fossil under 28 U.S.C. § 2409a(a) (Quiet Title Act).⁴ The Black Hills Museum of Natural History Foundation, Inc., a nonprofit corporation (created by the officers of BHIGR), was added as party plaintiff on May 26, 1992. Following the decision in Black Hills I on June 26, 1992, (finding the Court has anomalous jurisdiction to determine temporary custody), plaintiffs on July 31, 1992, filed a second amended complaint urging the Court to exercise this general equitable jurisdiction and its federal question jurisdiction (28 U.S.C. § 1331).⁵

The Court ordered the parties to submit an appropriate memorandum of law addressing the applicability of 28 U.S.C. § 2409a(a) and the cases of Carlson v. Tulalip Tribes of Washington, 510 F.2d 1337 (9th Cir.1975) and State of Florida, Dep't of Business Regulation v. United States Dep't of Interior, 768 F.2d 1248, 1254 (11th Cir.1985).

In their memorandum of law, plaintiffs urge the Court that its "anomalous jurisdiction" which it had in the posture of determining temporary custody should also apply on the issue of permanent ownership. Plaintiffs state, "But Plaintiffs have, with the filing of a second amended complaint, cast this action solely as one for the return of personal property to which Plaintiffs have a superior possessory right to that of the Government." (Docket # 115). Plaintiffs further urge that "Plaintiffs have not sought a determination under 2409a(a) to `quiet title' to the fossil, ..." By this amendment plaintiffs have abandoned any right of action under that statute.

There is a basic legal difference between exercising anomalous jurisdiction for the purpose of determining temporary custody (as the Court did in Black Hills I) and exercising anomalous jurisdiction for the purpose of determining the permanent possessory or ownership rights to the fossil. A permanent possessory right to the fossil is subsumed within the context of ownership. It is axiomatic that one cannot assert permanent possession as against the rightful owner absent a contract or agreement providing otherwise. The Court must therefore decide the issue of ownership.

This issue involves the application and interpretation of various federal statutes concerning Indian trust lands. It is on this basis that the Court finds it has federal question jurisdiction under 28 U.S.C. § 1331. A nonfrivolous claim of a right or remedy under a federal statute is sufficient to invoke federal question jurisdiction. See Jackson Transit Auth. v. Local Div. 1285, Amalgamated Transit Union, 457 U.S. 15, 21 n. 6, 102 S.Ct. 2202, 2206 n. 6, 72 L.Ed.2d 639 (1982). The statutory grant of jurisdiction under 28 U.S.C. § 1331 will support claims founded upon federal common law as well as those of a statutory origin. National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 2450, 85 L.Ed.2d 818 (1985).

28 U.S.C. § 2409a does not provide an independent ground for jurisdiction in this case. See, e.g., Spaeth v. United States Secretary of Interior, 757 F.2d 937, 942 (8th Cir.1985).

II GENERAL RULES OF LEGISLATIVE INTENT AS APPLIED TO INDIANS

The underlying rule is that congressional intent controls. DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). In judicial construction "doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection in good faith." Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). (Rosebud was a case involving congressional intent as to disestablishment of a part of the reservation.) In divining the legislative intent it is necessary to consider the legislation in its historical context and not as if it were passed today. Ute Indian Tribe v. Utah, 716 F.2d 1298, 1303 (10th Cir.1983).

A sale of allotted land in violation of federal law is void and confers no right upon the wrongdoer. Ewert v. Bluejacket, 259 U.S. 129, 42 S.Ct. 442, 66 L.Ed. 858 (1922). An allottee may not be barred by statute of limitations or laches from bringing suit to establish that title has been retained. Mottaz v. United States, 753 F.2d 71 (8th Cir.) rev'd on other grounds, 476 U.S. 834, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1985). Mottaz further held that Congress has not repudiated its policy of protecting Indian land by providing that claims against the United States for title to wrongful alienation allotments are barred by statute of limitations. Mottaz cited the case of Haymond v. Scheer, 543 P.2d 541 (Okla.1975).

In Haymond it was held that where...