First Nat. Bank of Decatur, Neb. v. United States

• Citation: 59 F.2d 367
• Decision Date: 03 June 1932
• Docket Number: No. 9385.,9385.
• Parties: FIRST NAT. BANK OF DECATUR, NEB., v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

59 F.2d 367 (1932)

FIRST NAT. BANK OF DECATUR, NEB., v. UNITED STATES.

No. 9385.

Circuit Court of Appeals, Eighth Circuit.

June 3, 1932.

Frank S. Howell, of Omaha, Neb. (Howell, Tunison & Joyner, of Omaha, Neb., on the brief), for appellant.

Ambrose C. Epperson, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, U. S. Atty., of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb., and Edson Smith, and Lawrence I. Shaw, Asst. U. S. Attys., both of Omaha, Neb., on the brief), for the United States.

Before GARDNER, SANBORN, and BOOTH, Circuit Judges.

GARDNER, Circuit Judge.

This is a suit in equity brought by the United States as trustee and guardian for the Omaha Tribe of Indians against the appellant, to quiet title to certain lands as against the claims of the defendant, and to enjoin defendant and those claiming under it from entering upon or taking possession of said lands. The parties will be referred to as they were designated in the lower court.

Prior to 1854, the Omaha Indians held the Indian title to that part of eastern Nebraska lying north of the Platte river. This Indian title to land as recognized in the United States was a right of possession and occupancy; the fee being in the general government. This right of possession and occupancy has been universally recognized in this country as sacred and as something which could not be taken away from the Indians without their consent, and then only upon such consideration as might be agreed upon. In accordance with this recognized principle, a treaty was entered into with these Indians under date May 16, 1854, by which they ceded the above-mentioned lands to the United States, except a certain area to be retained for a reservation. The reservation was later delineated pursuant to the terms of the treaty; the Missouri river being fixed as its eastern boundary. In 1867, the government caused the reservation to be surveyed, subdivided, and platted into forty-acre tracts and fractional lots, and this survey and the plat based thereon fixed and established the Missouri river as the eastern boundary of the reservation. The river, as shown by the plat, was approximately a mile east of the southwest quarter of the northwest quarter and the east half of the southwest quarter of section 33, township 25 north, range 10, east of the sixth p. m., which are the lands confessedly owned by the defendant. The lands bordering on the river were surveyed into irregular lots or tracts.

By Act of Congress approved August 7, 1882 (22 Stat. 341), provision was made for the allotment of certain lands in this reservation, including all of section 33 and the lands lying east thereof to the river. The plat showed the lands in which the defendant has acquired some title to be so remote from the river that full quarter sections of land intervened between them and the river.

The selection of and the filing upon the allotments of land in controversy in this suit by individual Indians took place in 1900, about thirty-three years after the official survey and the plat of these lands had been made and filed. These allotments were made by reference to the plat which then correctly showed the land and the number of acres which were stated to be within the descriptions. The act provided that patents to the allottees should be issued by the Secretary of the Interior and should provide that the United States would hold the allotted lands for a period of twenty-five years in trust, for the sole use and benefit of the allottees. Subsequent legislation extended the trust period, and as to lands not thus allotted provided that a patent should issue to the Omaha Tribe of Indians; the United States to hold the land thus patented in trust for the Indians for a period of twenty-five years.

The lower court found that subsequent to the 1867 survey, the Missouri river and the main channel thereof moved toward the west by process of erosion, gradually cutting away the soil and lands until in the year 1889 or 1890 it had reached and cut away a large part of the southwest quarter of the northwest quarter and the east half of the southwest quarter of section 33, township 25 north, range 10, east of the sixth p. m., the lands now owned by the defendant, so that these two tracts of land bordered in part on the Missouri river, and all the soil and land between these lands and the west bank of the Missouri river, as shown at the time of the 1867 survey, were cut out and washed away. Thereafter, however, and prior to 1896, the river receded toward the east, leaving all of the land owned by defendant and a considerable area of land between section 33 and the west river bank. The movement of the river toward the east was slow and imperceptible, and apparently left the land topographically in about the same condition as shown by the 1867 survey thereof. In 1916 and 1919, the Secretary of the Interior issued fee patents to the respective allottees, and defendant later by mesne conveyances became the owner of an undivided six-sevenths of the land so allotted and patented. The court found that: "In the granting of the allotments aforesaid to individual members of the Omaha Tribe of Indians, the said allotments were made according to the said plat of 1867, and every trust patent and the fee patents thereafter issued respectively contained a description of the land allotted according to the subdivisions thereof so platted, and recited the number of acres so allotted according to the acreage disclosed in said survey."

Title of the defendant to the lands described in the conveyances to it is not questioned by the government, but defendant claims title to all the land now intervening between the land which it acquired by these conveyances and the west bank of the Missouri river, as at present located, on the ground that, when the river moved westward and encroached upon the land which defendant now owns, these lands thereby became riparian, and that when the river again receded, leaving a considerable area of land between section 33 and the west river bank, these intervening lands became attached to its lands as accretions thereto, on the theory that land "once riparian, always riparian." In support of its contention, defendant relies...