Cass County Joint Water Resource Dist. v. 1.43 ACRES IN HIGHLAND TOWNSHIP

• Decision Date: 14 May 2002
• Docket Number: No. 20010217.,20010217.
• Citation: 2002 ND 83,643 N.W.2d 685
• Parties: CASS COUNTY JOINT WATER RESOURCE DISTRICT, a political subdivision of the State of North Dakota, Plaintiff and Appellant, v. 1.43 ACRES OF LAND IN HIGHLAND TOWNSHIP, Cass County, North Dakota, Turtle Mountain Band of Chippewa Indians, a/k/a Turtle Lake Band of Chippewa Indians, and Roger W. Shea, Defendants and Appellees.
• Court: North Dakota Supreme Court

643 N.W.2d 685

2002 ND 83

CASS COUNTY JOINT WATER RESOURCE DISTRICT, a political subdivision of the State of North Dakota, Plaintiff and Appellant, v. 1.43 ACRES OF LAND IN HIGHLAND TOWNSHIP, Cass County, North Dakota, Turtle Mountain Band of Chippewa Indians, a/k/a Turtle Lake Band of Chippewa Indians, and Roger W. Shea, Defendants and Appellees.

No. 20010217.

Supreme Court of North Dakota.

May 14, 2002.

Steven E. McCullough (argued), Ohnstad Twichell, P.C., West Fargo, N.D., for plaintiff and appellant.

Jerilyn DeCoteau (argued), Boulder, CO, Sarah M. Vogel and Courtney M. Koebele (appeared), Wheeler Wolf, Bismarck, N.D., for defendant and appellee Turtle Mountain Band of Chippewa Indians.

Russell John Myhre (appeared), Enderlin, N.D., for defendant and appellee Roger W. Shea.

Jerald A. Hjelmstad, N.D. League of Cities, Bismarck, N.D., for amicus curiae North Dakota League of Cities.

Charles M. Carvell, Assistant Attorney General, Bismarck, N.D., for amicus curiae State of North Dakota.

Calvin N. Rolfson, Rolfson Schulz Lervick & Geiermann Law Offices, P.C., Bismarck, N.D., for amicus curiae North Dakota Association of Counties.

Gary Michael Beaudry, Three Affiliated Tribes, Williston, N.D., for amicus curiae Three Affiliated Tribes.

NEUMANN, Justice.

[¶ 1] The Cass County Joint Water Resource District ("the District") appeals from a judgment dismissing its action seeking to acquire by condemnation 1.43 acres of land in Highland Township. We reverse and remand, concluding that neither tribal sovereign immunity nor the Federal Nonintercourse Act, 25 U.S.C. § 177, prohibits an in rem condemnation action against the land, and that the trial court erred in dismissing Roger Shea as a defendant in the action.

I

[¶ 2] The District is a political subdivision of the State of North Dakota authorized to manage water resources within Cass County. In 1994, the District submitted an application to the United States Army Corps of Engineers to build a dam on the Maple River in Cass County to provide flood control in eastern North Dakota. In conjunction with the project, the District has attempted to acquire the 1.43 acre tract of land at issue in this case. The land will be subject to frequent flooding if the dam is built.

[¶ 3] In a series of treaties between 1851 and 1873, the Mdewakanton, Wahpakoota, Sisseton, and Wahpeton bands of the Sioux Indians ceded territory, including the 1.43 acre tract, to the United States. In the late 1800s the land was transferred by patent to the Northern Pacific Railroad Company and was privately owned for more than one hundred years. At the time the District began the process of approval for the dam, the 1.43 acre tract was owned by Roger Shea as part of a larger parcel of land. Shea opposed construction of the dam. On July 28, 2000, Shea conveyed the 1.43 acre tract to the Turtle Mountain Band of Chippewa Indians ("the Tribe") by warranty deed for $500, reserving in himself the right to graze livestock on the land. On February 6, 2001, Shea executed a quit claim deed conveying his right to graze livestock on the 1.43 acre tract to the Tribe for $1. The July 28, 2000 warranty deed was recorded; the February 6, 2001 quit claim deed was not.

[¶ 4] The Tribe is a federally recognized Indian tribe and has a 43,000 acre reservation in Rolette County. The 1.43 acre tract at issue in this case is located approximately 200 miles from the reservation. The land does not lie within the aboriginal homelands of the Tribe, is not allotted land, and is not held in trust by, or otherwise under the superintendence of, the federal government. The Tribe contends, however, that its ancestors once occupied the area and that the 1.43 acre tract contains a culturally significant village site and burial site.

[¶ 5] In February 2001, the District brought this action seeking condemnation of the 1.43 acre tract, naming the Tribe and Shea as defendants. The Tribe moved to dismiss the action, arguing that it enjoyed sovereign immunity from suit and that condemnation of land owned by the Tribe would violate the Federal Nonintercourse Act. Shea also moved to dismiss the action against him, arguing he no longer had any interest in the 1.43 acre tract. The district court concluded that the action against the Tribe was barred by sovereign immunity and that Shea had no interest in the property. Judgment was entered dismissing the action, and the District appealed.

II

[¶ 6] The primary issue presented in this case is apparently one of first impression nationally: May a state condemn land within its territorial boundaries which has been purchased in fee by an Indian tribe, but which is not reservation land, aboriginal land, allotted land, or trust land? The district court held that, in order to entertain the condemnation action, it required both in rem jurisdiction over the land and in personam jurisdiction over the Tribe. The court concluded that tribal sovereign immunity barred assertion of in personam jurisdiction over the Tribe, and it therefore lacked jurisdiction to hear the condemnation action.

[¶ 7] On appeal, the District argues the court did not need in personam jurisdiction over the Tribe because condemnation is a purely in rem action, and sovereign immunity therefore does not bar the action. The Tribe argues that in personam jurisdiction is required and the court correctly concluded it lacked jurisdiction.

A

[¶ 8] It is well settled that a condemnation action is strictly in rem. See, e.g., McKenzie County v. Hodel, 467 N.W.2d 701, 705 (N.D.1991)

; United States v. Petty Motor Co., 327 U.S. 372, 376, 66 S.Ct. 596, 90 L.Ed. 729 (1946); Farley v. State, 180 Ga.App. 694, 350 S.E.2d 263, 264 (1986); Utilities, Inc. v. Washington Suburban Sanitary Comm'n, 362 Md. 37, 763 A.2d 129, 135 (2000); State v. Clark, 238 Or. 505, 395 P.2d 146, 148 (1964); In re Petition of Seattle, 56 Wash.2d 541, 353 P.2d 955, 957 (1960); 6 Julius L. Sackman, Nichols on Eminent Domain § 26A.05[1] (2001). A proceeding in rem is an action against the property itself, and in personam jurisdiction is not required. See, e.g., Catlin v. Catlin, 494 N.W.2d 581, 588 (N.D.1992); Smith v. Smith, 459 N.W.2d 785, 787-88 (N.D.1990); Freeman v. Alderson, 119 U.S. 185, 187, 7 S.Ct. 165, 30 L.Ed. 372 (1886); Phillips v. Chas. Schreiner Bank, 894 F.2d 127, 132 (5th Cir.1990); Farley, 350 S.E.2d at 264; In re Petition of Seattle, 353 P.2d at 957-58; Restatement (Second) of Conflict of Laws § 59 (1988).

[¶ 9] The general rule is set out in 20 Am.Jur.2d Courts § 80 (1995): "[A] decision in rem does not impose responsibility or liability on a person directly, but operates directly against the property in question ... irrespective of whether the owner is subject to the jurisdiction of the court in personam." See also 59 Am. Jur.2d Parties § 1 (1987) ("in an in rem proceeding there are no parties in the sense of opposing litigants," and "a defendant to proceed against is essential in all civil proceedings except where the action is strictly in rem"). The essential nature of an in rem proceeding is delineated in 1 Am.Jur.2d Actions § 34 (1994) (footnotes omitted):

A proceeding in rem is essentially a proceeding to determine rights in a specific thing or in specific property, against all the world, equally binding on everyone. It is a proceeding that takes no cognizance of an owner or person with a beneficial interest, but is against the thing or property itself directly, and has for its object the disposition of the property, without reference to the title of individual claimants. The action of the court is binding, even in the absence of any personal notice to the party interested or any jurisdiction over his person.

[¶ 10] The Supreme Court of the United States outlined the distinctions between in rem and in personam jurisdiction in Shaffer v. Heitner, 433 U.S. 186, 199, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (emphasis added):

[S]tate authority to adjudicate was based on the jurisdiction's power over either persons or property. This fundamental concept is embodied in the very vocabulary which we use to describe judgments. If a court's jurisdiction is based on its authority over the defendant's person, the action and judgment are denominated "in personam" and can impose a personal obligation on the defendant in favor of the plaintiff. If jurisdiction is based on the court's power over property within its territory, the action is called "in rem" or "quasi in rem." The effect of a judgment in such a case is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner, since he is not before the court.

The Court in Shaffer thus recognized that in rem jurisdiction can be exercised without acquiring in personam jurisdiction over a party, but concluded that due process requires that there be minimum contacts between the party and the forum state. Id. at 212, 97 S.Ct. 2569, 53 L.Ed.2d 683; see also Smith, 459 N.W.2d at 787-88

. There is no due process problem in this case. As the Court noted in Shaffer, 433 U.S. at 207-08,

97 S.Ct. 2569,

53 L.Ed.2d 683 (footnotes omitted):

[T]he presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant's claim to property located in the State would normally indicate that he expected to benefit from the State's protection of his interest. The State's strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses

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