Oglala Sioux Tribe of Pine Ridge Indian Reservation v. Homestake Min. Co., 82-2101

• Decision Date: 20 January 1984
• Docket Number: No. 82-2101,82-2101
• Citation: 722 F.2d 1407
• Parties: The OGLALA SIOUX TRIBE OF the PINE RIDGE INDIAN RESERVATION, Appellant, v. HOMESTAKE MINING CO., et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1407

722 F.2d 1407

The OGLALA SIOUX TRIBE OF the PINE RIDGE INDIAN RESERVATION, Appellant, v. HOMESTAKE MINING CO., et al., Appellees.

No. 82-2101.

United States Court of Appeals Eighth Circuit.

Submitted May 16, 1983.

Decided Dec. 9, 1983.

Rehearing Denied Jan. 20, 1984.

Mario Gonzalez, Pine Ridge, S.D., Russel L. Barsh, Seattle, Wash., for appellant; Sidney Flores, Flores, Cervantes & Luna, San Jose, Cal., of counsel.

Mark V. Meierhenry, Atty. Gen., Dennis R. Holmes, Deputy Atty. Gen., Pierre, S.D., for the State of S.D. as amicus curiae; Mario Gonzalez, Pine Ridge, S.D., of counsel.

William T. Finley, Jr., William C. Lieblich, David F.B. Smith, Pierson, Semmes, Crolius & Finley, Washington, D.C., for appellees; William G. Langston, Homestake Mining Company, San Francisco, Cal., George A. Bangs, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, S.D., of counsel.

Before McMILLIAN, JOHN R. GIBSON and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

This is another chapter in the long story of litigation concerning the Black Hills brought by the Oglala Sioux Tribe of the Pine Ridge Indian Reservation and by the Sioux Nation. The district court ¹ entered summary judgment against the Oglala Sioux in this action against Homestake Mining Company and its directors. The Oglala Sioux sought to quiet title to five acres of land, to enjoin Homestake from interfering with the mine, and to recover claimed compensatory and exemplary damages for the unlawful and continuing trespass on their land for 106 years. The district court ruled that an earlier action by the Oglala Sioux against the United States and Homestake which was dismissed for lack of jurisdiction (Oglala I) and which was affirmed by this Court, Oglala Sioux Tribe v. United States, 650 F.2d 140 (8th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982), compels dismissal of this action. The Oglala Sioux argue that the earlier judgment is not conclusive, and that since Homestake unlawfully entered the Oglala Sioux property, Homestake's title is void ab initio. The Oglala Sioux also argue that the Act of 1877 is unconstitutional and did not divest the Sioux of their interest in the Black Hills. We affirm the judgment of the district court.

The history of the litigation involving the Black Hills is set out in detail in Justice Blackmun's opinion in United States v. Sioux Nation of Indians, 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980). We need not repeat that history except as it may be material for determination of the issues before us. Suffice it to say that Sioux Nation determined that the Act of February 28, 1877, implementing the terms of the Many Penny Commission's agreement with the Sioux leaders effected a taking of tribal property which had been set aside for the exclusive occupation of the Sioux by the Fort Laramie Treaty of 1868, and therefore, an implied obligation to make just compensation to the Sioux Nation was created. The effect of the Sioux Nation case was payment of more than $105,000,000 to the Sioux's account.

Eighteen days after the Supreme Court decision in Sioux Nation affirming the $105,000,000 award, the Oglala Sioux brought an action (Oglala I) against the United States and a number of individuals, municipalities and private defendants, including Homestake Mining Company. The district court ² on September 11, 1980, dismissed the action for lack of jurisdiction. This Court affirmed the district court in Oglala Sioux Tribe v. United States, supra, 650 F.2d 140. Shortly thereafter this action against Homestake and its directors was commenced in the Northern District of California. The case was transferred to the United States District Court for the District of South Dakota under 28 U.S.C. Sec. 1406(a) (1976).

In granting summary judgment the district court found it clear that the tribe seeks essentially the same relief against Homestake which it sought in Oglala I and that the basis for the tribe's claim against Homestake was identical to that asserted in Oglala I.

I.

We agree with the district court that Oglala I, as affirmed by this Court, bars this action. The doctrine of res judicata provides that a "final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981). According to the United States Supreme Court the policies advanced by the doctrine of res judicata are at their zenith in cases concerning real property, land and water. Nevada v. United States, --- U.S. ----, ---- n. 10, 103 S.Ct. 2906, 2918 n. 10, 77 L.Ed.2d 509 (1983).

To determine the applicability of res judicata to the facts before us, we must decide first if the cause of action that the Oglala Sioux now seek to assert is the same cause of action that they asserted in Oglala I; we must then decide whether the parties in this proceeding are identical to or in privity with the parties in Oglala I. We address these questions in turn.

A.

In Oglala I the Oglala Sioux brought a quiet title action in the United States District Court for the District of South Dakota. In that case the tribe sought the following relief: (1) to quiet title to seven million acres of land comprising the Black Hills; (2) to enjoin the United States from removing minerals and other resources from the land; (3) to enjoin the defendants from interfering with the tribe's use and occupation of the land; and (4) to award damages against individually named defendants, including Homestake, for trespass and waste. In this action against Homestake and its individual corporate directors, the tribe seeks (1) to quiet title to approximately five acres of land included within Homestake Mine; (2) to enjoin Homestake from interfering with the Tribe's possession and ownership of the mine, and from removing minerals therefrom; (3) an accounting for all gold and other resources taken from the mine since 1876; and (4) compensatory damages for the alleged trespass of Homestake on the Tribe's property.

It is clear from the pleadings and briefs of the Oglala Sioux that the basis for the Tribe's claim against Homestake is identical to that asserted in Oglala I. In both Oglala I and the present claim, the Oglala Sioux are essentially contesting the constitutionality of the Act of 1877 in which Congress took possession of the Black Hills. In Oglala I the Tribe asserted that Homestake "could not derive any title or interest from the United States ... to any land, minerals ... or other interests" in the Black Hills. The Tribe argued that Congress unconstitutionally exercised its eminent domain power when it took the Black Hills from the Sioux in the Act of 1877. The unconstitutional taking failed to divest the Tribe of its interest in the Black Hills and, therefore, no private party could acquire clear title to land in the Black Hills from the United States.

In this case, the Tribe contends that Manuel and Harney, the original owners of what later became Homestake Mine, located a mineral claim in the Black Hills while the land was still part of the reservation, prior to the Act of 1877. The Tribe argues that this illegal entry renders void ab initio any claim of Homestake to title in the land and minerals in question. The Tribe also argues that the Act of 1877 was an unconstitutional taking, which did not divest the Tribe of title to the Black Hills; therefore, Homestake could never acquire title or a valid mineral patent to the land from the United States as a result of the 1877 taking. In their complaint in this case the Tribe asserts that "the land in question, and the minerals attached, were never ceded to the United States by the plaintiff and never became lands belonging to the United States to the date of filing this action." The Tribe argues that the Act of 1877 violated the Free Exercise Clause of the First Amendment and the public purpose limitation on the exercise of federal eminent domain in the Fifth Amendment.

A comparison of the plaintiffs' allegations in the present case with those set forth in Oglala I makes it clear that the essential nature of this action is no more than an elaboration upon the claims the Tribe made in Oglala I.

B.

Both the Oglala Sioux Tribe and Homestake were parties in Oglala I and are parties here. ³ Although the Oglala Sioux contend that Homestake was not a party to the decision of this Court in 1981, they do not deny that Homestake was a party to the Oglala I decision dismissing their claim. At the very least, therefore, the Oglala I decision of the district court dismissing the claim is res judicata, precluding any reassertion of the Oglala Sioux claim against Homestake. Cf. Moitie, supra, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103.

We need not rely on the res judicata effect of the district court decision, however, because our decision in Oglala I, 650 F.2d 140, affirmed the dismissal of the Oglala Sioux action against all defendants, including Homestake. The Oglala Sioux contend that this court did not affirm dismissal of their action against the private defendants, (one of which was Homestake) but only discussed the jurisdiction of a district court to hear the Tribe's claims against the United States and affirmed the district court only as to the dismissal of the case against the United States. An examination of Oglala I shows that this Court did affirm the dismissal of the action against all defendants, including Homestake.

In their appeal of Oglala I, the Oglala Sioux specifically raised the dismissal of the action against the private defendants in their statement of issues on appeal. ⁴ In its 1981 decision affirming the dismissal of the district court, this Court did not specifically discuss its affirmance of the district court's dismissal in relation to the private defendants. That the Court was fully aware...