Fontenelle v. Omaha Tribe of Nebraska

• Decision Date: 07 April 1969
• Docket Number: Civ. No. 02200.
• Citation: 298 F. Supp. 855
• Parties: Victor FONTENELLE et al., Plaintiffs, v. OMAHA TRIBE OF NEBRASKA et al., Defendants.
• Court: U.S. District Court — District of Nebraska

298 F. Supp. 855

Victor FONTENELLE et al., Plaintiffs, v. OMAHA TRIBE OF NEBRASKA et al., Defendants.

Civ. No. 02200.

United States District Court D. Nebraska.

April 7, 1969.

John J. Powers, Omaha, Neb., and Ralph M. Anderson, Tekamah, Neb., for plaintiffs.

Richard L. Edgerton, Asst. U. S. Atty., for United States.

Keith Hopewell, Tekamah, Neb., for defendant, Virgil Hanson.

Morton Liftin, Washington, D. C., for Omaha Tribe of Nebraska, a federal corp.

MEMORANDUM

RICHARD E. ROBINSON, Chief Judge.

This is an action to quiet title to land formed after 1867 by the movement of the Missouri River receding from its east meander line as established by the official United States survey of that year. Specifically involved is an area which lies between the west bank of the Missouri River as it exists presently and the east boundary of Lots 2, 3 and 4 of Section 26, and Lot 4 of Section 36, Township 24 North, Range 10 East, as shown on the official 1867 plat. This large tract of land which has been denominated by the parties as "accretion land" is described as follows:

Beginning at the northernmost point of Lot 2, Section 26, Township 24 North, Range 10 East of the 6th Principal Meridian, according to the official plat and survey, thence east on a line parallel with the extended north line of said Section 26 to the center of the present channel of the Missouri River, thence following the center of the channel of said River down stream to a point directly east of the Southeast corner of Lot 4 of Section 36, Township 24 North, Range 10 East of the 6th Principal Meridian, according to the official plat and survey; thence west to said Southeast corner of Lot 4 of said Section 36, thence following the meander line of the original government survey of 1867 of the Missouri River in a Northwesterly direction to the point of beginning.

This case was tried, post-trial briefs filed, arguments had and the case is now ready for decision, based upon the following findings of fact and conclusions of law.

It may be noted that at the conclusion of the testimony it was suggested by Mr. Edgerton, former Assistant United States Attorney, that it might be helpful to an understanding of the evidence and issues if the Trial Judge were to make an on-sight inspection of the area involved in this litigation. The writer indicated at that time that he might consider such an inspection after receipt of posttrial briefs and arguments. Since the submission of the matter the writer has concluded that such a trip is not necessary to an understanding and decision of the issues; and moreover that such a trip at this late date would only serve to delay a decision herein which is now long overdue.

At the conclusion of the plaintiffs' evidence and after plaintiffs had rested The Omaha Tribe of Nebraska and the United States of America as Trustee and Guardian of Omaha Tribe of Nebraska, a Federal corporation moved the Court as follows:

"moves the Court for a directed judgment for the reason that the plaintiff has failed to show that at the time of the survey, that is, the survey of 1867, or at the time of the selection of these lots by the Indian allottees, which would be in respect to Lot 4 of Section 36, and Lot 4 of Section 26, to be the date that the trust patent was issued, December 9, 1884, and the time of selection of Lots 2 and 3 in Section 26 would be May 23, 1900; that the particular lots which I have made reference to, Your Honor, were riparian to the river. That is, both dates, at the time of selection or the time of survey; that the only evidence adduced by the plaintiffs was that at some time, give or take, somewhere around World War I, that the river may have encroached upon the high bluff, the west bank of the Missouri River, which parallels the patented ownership of the Fontenelles, but this was subsequent to either of the dates of selection or of patent; that by reason of the evidence that is now before the Court through stipulation by and between the parties, the Court would have sufficient grounds to quiet title in the United States of America to the accretion lands in question."

The said defendants further moved the Court to dismiss the action for the reason that the Court is lacking in jurisdiction in that the Tribe had failed to give its consent to be sued. Ruling on said motions was reserved. Again at the end of all of the evidence the said defendants reasserted their motions made following the conclusion of the plaintiffs' case as to jurisdiction and as to the directed judgment.

The plaintiffs are the owners of Lots 2, 3 and 4 of Section 26 and of Lot 4 in Section 36 in Township 24 North, Range 10 East of the 6th Principal Meridian in Burt County, Nebraska, and are the collateral descendants of Logan Fontenelle, the first chief of the Omaha Tribe. These tracts of land were originally patented by the United States, pursuant to statutory authorization to individual members of the Omaha Tribe of Indians out of lands included in the Omaha Indian Reservation. The trust patents covering Lot 4, Section 26 and Lot 4, Section 36 were issued on December 29, 1884 and a fee patent was issued on November 5, 1912. A trust patent covering Lots 2 and 3, Section 26 was approved on February 14, 1900, and a fee patent was issued on March 24, 1924. All of the patents set out precise acreages contained in the grants and, with the exception of the fee patent covering Lots 2 and 3, Section 26, were issued "according to the official plat of the survey of the said land returned to the general land office by the Surveyor General."

The issues in this case may be stated simply:

1. Do grants by patent to land which bordered on the Missouri River at the time of the official survey and plat carry with them title to acreage added physically to the patented lands by the process of accretion?

2. Does the fact that the patented lands were originally included in an Indian reservation call for the application of rules or principles of accretion different from those pertinent to non-reservation lands?

The defendant also argues that the evidence tends to show the disputed acreage to have been formed by avulsion rather than accretion. However, the testimony from the lips of old time residents in the Tekamah area Tekamah, Nebraska, is a short distance south of the locale of this controversy, whose memory extended back as far as 1907, outlined the familiar story of the twisting, turning and shifting of the Missouri River in its broad bed, of the formation of gumbo lakes, the appearance and disappearance of sandbars, the growth of willows * * * adding up to a composite picture of the gradual movement of the main channel from the eastern part of the river bed to its western part, a process of accretion and reliction. It is noted incidentally that reliction, that is, the gradual recession of the water from its bank, is governed by the same principles as accretion and the Court will not attempt to distinguish the terms in this Memorandum. See Patton Titles, 1938 Edition, Section 170, pp. 586, 588.

The Tribe early filed a motion to dismiss based on sovereign immunity. It denied that it had consented to be sued. The Court overruled this motion on the ground that Section 5i of the Corporat Charter of The Omaha Tribe.¹ which charter had been approved by the Secretary of Interior, supplied such consent.

There is little dispute in the evidence as to the basic matters. After this action was instituted the Court granted the defendant a continuance to allow it time to cause to be made a resurvey of the Missouri River through Section 26 and the north part of Section 36 in Township 24 North, Range 10 East of the 6th Principal Meridian. This was accomplished by a team of technicians under the supervision of Mr. Richard Snider, a United States Bureau of Land Management Surveyor. Using the original T. H. Barrett field notes, Mr. Snider located various quarter corners and produced a plat which is almost precisely identical with the Barrett plat. His evidence established conclusively that there had not been the slightest error in the official plat and survey. Once having proven the correctness of the plat and survey and the absence of a showing of fraud or mistake in its making a showing that the meander line of the West bank of the Missouri River constituted the cast line of Lots 2, 3 and 4 of Section 26 and Lot 4 of Section 36, Township 24 North, Range 10 East of the 6th Principal Meridian is also established. This plat and survey shows, therefore, the above described land to be riparian to the Missouri at the time of the official survey and plat and therefore defendant's motion claiming failure to prove that the lands were not riparian is without merit. Whether the land was riparian at the time of the selection or issuance of the patent is irrelevant and motion based upon failure to prove such is also overruled.

It is obviously impossible to draft a plat of riparian lands which would delineate precisely the water's edge, an inconstant thing, hopelessly so in the case of the errant, restless Missouri. Mr. Snider correctly testified that in making surveys and plats of public lands meander lines are drawn for the purpose of ascertaining the quantity of land contained in the riparian tracts * * * denominated "lots" in contrast to the regular quarter sections or other delineated fractions of sections. The meander lines mark generally the sinuosities of the stream, and in the absence of error or fraud in the survey and plat, the water, and not the meander line, is the boundary of the riparian land. Jefferis v. East Omaha Land Company, 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 1890; 56 Am.Jur., Waters, Section 477, p. 892; Patton Titles, 1938 Edition, Section 173, p. 593 citing at note 284a, Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 1892.

The case which is probably most often cited by jurists and lawyers in discussion of the effect of accretion on...