Lande v. Schwend, (1999)
| Decision Date | 04 March 1999 |
| Docket Number | 91-163,91-168,92-30 |
| Parties | JACK LANDE, PLAINTIFF-APPELLEE v. GLEN SCHWEND, DEFENDANT-APPELLANT, AND DENNIS, JACOB, TRUNSON, ALOYSIUS, AND VELMA BIG HAIR, DEFENDANTS. |
| Court | Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency Montana |
¶1 This is an appeal from the judgment in favor of plaintiff-appellee Jack Lande entered by the Tribal Court (Stewart, J.) on August 20, 1992, in a dispute arising from the competition for a competent agricultural lease on Crow trust lands.
¶2 The record in this appeal consists of the "Record on Appeal and Statement of Proceedings" submitted by appellant Schwend pursuant to Rule 7(b) of the Crow Rules of Appellate Procedure, together with the other materials submitted by appellant during briefing and oral argument.
¶3 On August 5, 1986, First Continental Corporation entered into a "competent" farming and grazing lease on Crow Allotment No. 3059 with the five Big Hair defendants. The Big Hairs are members of the Crow Tribe, and are the heirs and owners of equal undivided beneficial interests in the Allotment, which consists of 1,020.84 acres of land located on the Crow Indian Reservation and in which legal title is held in trust by the United States of America. By special Act of Congress (41 Stat. 751) and as provided in the Bureau of Indian Affairs regulations at 25 C.F.R. § 162.15, Crow Indians are presumed competent in certain circumstances (including this case) to grant agricultural leases on their trust allotments without the approval of the Secretary of the Interior.
¶4 The preprinted language of the First Continental lease form a copy of which was first provided to this Court at oral argument, states that the lease was "for a term of five (5) years commencing August 5, 1986" (with the underlined date having been a blank filled in by typewriter). The immediately following provision of the lease states that "rental for said premises for the term of the lease shall be as follows: $1,531.26 per year for 1 years for 1020.84 acres commencing August 1, , 1986 ;" (again, the underlined items were blanks filled in by typewriter). Other blank lines provided on the form for four subsequent years were not filled in. These blanks are followed by the statement: "Lessor acknowledges that all rentals are paid up to December 1, 1989." Following that acknowledgment, a box is checked referring to a "Farm Attachment" as being incorporated into the lease.
¶5 The "Attachment to Lease" concerns additional rental for the 701.32 acres converted from grazing to cultivation, and provides that "[t]he date and payment of cash rental for each acre plowed and farmed by Lessee shall be as follows:
December 1, 19 86 $7.75
December 1, 19 87 $9.00
December 1, 19 88 $9.00 [.]"
Again the underlined figures were apparently blanks filled in by typewriter. Following the entry for December 1, 1988, two more lines on the form for two additional years are obliterated by rows of typewritten X's across the page.
¶6 In connection with its defaults on various obligations owing to defendant-appellant Schwend, First Continental assigned the lease to "Schwend Ranch" on February 12, 1988. On that date, Schwend and First Continental executed an "Assignment of Lease" that conveyed all the latter's interest in Schwend is a non-Indian who resides within the Crow Reservation.
¶7 On or about January 1, 1989, the five Big Hairs entered into another competent lease for Allotment 3059 with plaintiff-appellee Jack Lande. Lande is a member of the Crow Tribe who also resides on the Reservation. The stated term of the Lande lease was "Five (5) years . . . commencing on 3/1/89 to 3/1/93." The lease specifies cash rental for grazing at the rate of $2.50 per acre for all 1020.84 acres plus $3.00 per acre for the 320 acres not in cultivation, and the extended amounts stated in the "Total" column for the first year (1989) that year are equal to five years' payments at those rates. Except for filling in the years 1990 through 1993, the blanks for rental payment in the following years were not filled in. The last page of the Lande lease stated "WILL PAID ON FARMLAND (701.84 acres) AT A LATER DATE."
¶8 Lande paid the total 5-year grazing lease rental of $17,560.50 by cashier's checks dated January 10, 1989, in the amount of $3,512.10 to each of the five Big Hairs. Lande apparently made an additional payment of $609.50 on the lease sometime later.
¶9 Lande's secretary delivered his lease document to the Bureau of Indian Affairs office in Crow Agency for filing. However, sometime later, Lande received the lease back from the Bureau together by mail with a letter apparently signed by the acting Realty Officer stating:
We are returning, without filing, the proposed lease on Allotment Number 3059. There is an existing lease on this tract to the First Continental Corporation that does not expire until August 5, 1991.
The letter, introduced as defendant Schwend's Exhibit A, is not dated, but the copy in the record includes the handwritten notation "Mailed 6/18/90[.]"
¶10 It is undisputed that Mr. Lande never took possession of Allotment 3059, never derived any benefit from the land, and never received any reimbursement of the $18,170 he paid to the Big Hairs.
¶11 About this same time, Mr. Lande and Mr. Schwend were involved in another dispute concerning other trust lands that wound up in the Crow Tribal Court during 1989. Lande v. Schwend and Milan, Civ. 89-106 (Crow Tribal Court) (Appellant's Brief at Tab 11; Appellee's Response at 1). The case apparently went to trial before a special judge that year, but no transcript, pleadings or judgment from that case have been made available to this Court. There is no serious dispute, however, that the fact of Lande's 1989 lease payment to the Big Hairs came up during the course of that trial.
¶12 The record is conflicting as to when Mr. Schwend entered into his next lease with the Big Hairs. Schwend's motion for reconsideration, filed shortly after the judgment was entered, states that "the record will indicate that the Big Hair Defendants entered into a lease on competent Indian land on January 16, 1990," and that "the lease dated January 16, 1990 was filed at the office of the Crow Indian Agency on March 19, 1990" (Motion for Reconsideration dated September 10, 1992, ¶ 4 at p. 3). However, the copy of the lease to "G S Partnership" in the record submitted by appellant is dated February 19 1991.
¶13 The form of the GS Partnership lease is very similar to the 1986 First Continental lease, providing for a term of "five (5) years commencing December 1, 1990," grazing rental of $1.50 per acre or "$1,002.00 for 5 years for 668.0 acres commencing December 1, 1990 [.]" There is an aknowledgment that the all "grass" rentals are paid up to December 1, 1995, and the Farm Attachment provides for payment of $12.00 per acre for 352.84 cultivated acres on each December 1 for the years 1990 through 1994. The record includes a letter dated April 25, 1991 from the BIA Realty Officer stating that the GS Parnership lease was filed under file number 3059-A-90, and reviewed pursuant to 25 CFR § 162.15(d).
¶14 It is undisputed that Mr. Schwend retained uninterrupted possession of the Allotment for agricultural purposes from the First Continental lease assignment in 1988 through the term of the GS Partnership lease, and that Schwend made all the payments specified in that latter lease to the Big Hairs.
¶15 Mr. Lande filed a complaint in the Tribal Court on June 28, 1991, which requested injunctive relief and alleged that defendant Schwend conspired with the Big Hairs to deny Lande the benefits under his 1989 lease (Appellant's Statement of Proceedings at 2). Trial was held on November 5, 1991, before the Hon. Donald A. Stewart, Sr., with defendant Schwend represented by counsel, plaintiff Lande appearing pro se, and either Trunson or Aloysious appearing on behalf of the Big Hair family. Lande and Schwend both testified, and witnesses included Lande's secretary and Schwend's leasing agent. It is not apparent from the record that any of the Big Hairs testified or called any witnesses.
¶16 After the hearing, Schwend and Lande both submitted detailed proposed findings of fact and conclusions of law. The Tribal Court adopted Lande's proposed findings, conclusions, order and judgment verbatim.
¶17 The judgment awarded to Lande a total of $27,488.63, consisting of the $18,170 Lande paid the Big Hairs for the lease in 1989, along with $9,318.63 in "punitive damages" in the form of 12.5 percent interest compounded annually through July 10, 1992. The judgment also awarded additional interest accruing at $8.98 per day after July 10, 1992 until the judgment is satisfied, and the sum of $250 as costs. The judgment in favor of Lande was rendered against all the defendants (Schwend and the five Big Hairs) "to be paid by the six named defendants as they may decide[.]"
¶18 The judgment was entered in the Tribal Court on or about August 20, 1992. Mr. Schwend's counsel filed a Motion for Reconsideration on or about September 10, 1992, citing specific errors in various findings and conclusions adopted by the Tribal Court. Lande filed an opposition later that month, and then filed a "Request for Hearing" on November 10, 1992. Schwend renewed his request for a hearing on his motion in the Tribal Court on November 19, 1992. However, no further proceedings or filings occurred in the Tribal Court until 1997.
¶19 Also on ...
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