Omaha Indian Tribe, Treaty of 1854 with U.S. v. Wilson

Citation614 F.2d 1153
PartiesOMAHA INDIAN TRIBE, TREATY OF 1854 WITH the UNITED STATES (10 Stat. 1043), Organized pursuant to the Act of
Decision Date18 June 1934
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

William H. Veeder, Washington, D. C., for Omaha Indian Tribe.

Thomas R. Burke and Lyman L. Larsen, Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., for appellee, Harold Jackson.

Edson Smith and Robert H. Berkshire, Swarr, May, Smith & Andersen, Omaha, Neb., for appellee, Roy Tibbals Wilson, et al.

Peter J. Peters, Council Bluffs, Iowa, for appellees, RGP, et al.

Lowell Kindig, Kindig, Beebe, Rawlings, Nieland & Killinger, Sioux City, Iowa, for appellee, Travelers Insurance Co.

Maurice B. Nieland, Kindig, Beebe, Rawlings, Nieland & Killinger, Sioux City, Iowa, for appellee, Harold M. Sorenson, et al.

Thomas J. Miller, Atty. Gen., Des Moines, Iowa and Bennett Cullison, Jr., Harlan, Iowa, for appellees, State of Iowa, et al.

Before LAY, Chief Judge, * and STEPHENSON and HENLEY, Circuit Judges.

LAY, Chief Judge.

These cases have been remanded to us by the United States Supreme Court for reconsideration in light of the principles set forth in its June 20, 1979 opinion. Wilson v. Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979).

I. Factual Background.

At issue is ownership of approximately 2,900 acres of land lying adjacent to the Missouri River in an area called Blackbird Bend located in what was then the Territory of Nebraska, and which is conceded to have been set aside in 1854 by treaty as a reservation for the Omaha Indian Tribe. The tortured history of the land dispute and attendant controversy over the nature of the early movements of the Missouri River is fully set forth in the district court's opinion, 433 F.Supp. 67 (N.D.Iowa 1977), as well as in this court's previous decision, 575 F.2d 620 (8th Cir. 1978). This court reversed the district court's judgment in favor of the defendants and against the Tribe. We did so for two reasons: (1) We held the district court failed to apply federal law rather than state law in regard to burden of proof, 25 U.S.C. § 194, and substantive law concerning accretion and avulsion; and (2) we found the proof of accretion adduced by defendants was conjectural and speculative and defendants failed to meet the requisite burden.

The Supreme Court granted certiorari, confining its review to the applicability of 25 U.S.C. § 194, and whether federal or state law should have been employed to determine the substantive issue of river movement.

Generally, the Court sustained our holding that 25 U.S.C. § 194 was applicable and placed both the burden of going forward with the evidence and of persuasion upon the defendants. 1 The statute reads:

In all trials about the right of property in which an Indian may be a party on one side, and a white person on the other, the burden of proof shall rest upon the white person, whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership.

The Court also agreed that the Tribe's right to the property depended upon federal law, " 'wholly apart from the application of state law principles which normally and separately protect a valid right of possession,' " --- U.S. at ---, 99 S.Ct. at 2539 (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 677, 94 S.Ct. 772, 782, 39 L.Ed.2d 73 (1974)). Nonetheless, the Court held the legal standard to be employed in determining whether accretion or avulsion occurred, absent any boundary dispute or other need for a uniform federal rule, should be borrowed from applicable state property law, in this case the law of the State of Nebraska. 99 S.Ct. at 2543.

II. Nebraska Law.

On review of the governing principles of state law, we hold the district court's interpretation of Nebraska law was incorrect, and adhere to our prior opinion that all parties making claim against the Tribe, with the exception of the State of Iowa, demonstrated only speculative and conjectural evidence of their right to have title to the reservation land, which was granted to the Tribe by the Treaty of 1854, quieted in them. We hold that those parties failed to sustain the burden of proof placed upon them by 25 U.S.C. § 194 and title to the land in question should be quieted in the Tribe. 2

Our disagreement with the district court was with its broad definition of accretion and correspondingly narrow definition of avulsion. We stated:

The trial court . . . held that a sudden and unusual (erratic) jump or movement of the thalweg without evidence of identifiable land in place falls within the historical rule of accretion. We find this ruling inconsistent with settled principles governing the rule of accretion and the broader parameters involving the doctrine of avulsion.

575 F.2d at 639.

We also held the district court erroneously placed the burden of proof on the Tribe, although it did not give defendants the benefit of a presumption of accretion. Id. at 633. The result was that defendants received the benefit of any favorable inferences from sketchy proof of avulsion: what was not clearly proved avulsive must, in the district court's view, be the result of accretion.

The Supreme Court's decision makes it clear that defendants shoulder the burden of persuasion on the question of whether the Tribe is no longer entitled to possession of the area which was in the past part of its reservation. To quiet title in themselves, defendants must show the strength of their title; they must prove by a preponderance of the evidence that the River changed by the process called accretion. Thus they do not have the advantage, as they did under the trial court's reasoning, of inferences drawn from any weaknesses in evidence tending to show avulsion. See Mitchell v. Beermann, 175 Neb. 616, 620, 122 N.W.2d 525, 527 (1963); Jones v. Schmidt, 170 Neb. 351, 355, 102 N.W.2d 640, 644 (1960); De Long v. Olsen, 63 Neb. 327, 329, 88 N.W. 512, 513 (1901).

Upon examination of Nebraska case law, we conclude Nebraska adheres to the common law principles governing avulsion and accretion set forth in our earlier opinion. 3 Federal and Nebraska law do not differ substantially in the basic definition of the terms, perhaps because of the shared origin of the common law principles in Roman and early English law. Our prior analysis, commencing with early definitions from the Institutes of Justinian through the early United States Supreme Court cases including Missouri v. Kentucky, 78 U.S. (11 Wall.) 395, 20 L.Ed. 116 (1870); Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 (1890); Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892), and this court's decisions in Davis v. Anderson-Tully Co., 252 F. 681 (8th Cir. 1918); Commissioners of Land Office v. United States, 270 F. 110 (8th Cir. 1920), appeal dismissed, 260 U.S. 753, 43 S.Ct. 14, 67 L.Ed. 497 (1922), finds full accord in Nebraska case law. Nearly all the earlier Nebraska cases we have examined rely upon these and other early federal cases for definitions of accretion and avulsion.

The early United States Supreme Court cases of Mayor, Aldermen & Inhabitants of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 9 L.Ed. 573 (1836) and County of St. Clair v. Lovingston, 90 U.S. (23 Wall.) 46, 23 L.Ed. 59 (1874), were cited as rules of decision and quoted in the early Nebraska case of Gill v. Lydick, 40 Neb. 508, 59 N.W. 104 (1894), and also in Frank v. Smith, 138 Neb. 382, 293 N.W. 329 (1940). As the Nebraska Supreme Court stated in Lienmann v. Sarpy County, 145 Neb. 382, 392, 16 N.W.2d 725, 729 (1944), citing several representative cases, it "has repeatedly followed the rules of law as stated in State of Nebraska v. Iowa, supra." See also, Mercurio v. Duncan, 131 Neb. 767, 769, 269 N.W. 901, 902 (1936); Independent Stock Farm v. Stevens, 128 Neb. 619, 621, 259 N.W. 647, 648 (1935); Iowa Railroad Land Co. v. Coulthard, 96 Neb. 607, 610, 148 N.W. 328, 329 (1914); De Long v. Olsen, 63 Neb. at 331, 88 N.W. at 514. Principles articulated by this court in Commissioners of Land Office v. United States, 270 F. 110 (8th Cir. 1920), appeal dismissed, 260 U.S. 753, 43 S.Ct. 14, 67 L.Ed. 497 (1922), were quoted with approval in State v. Ecklund, 147 Neb. 508, 521-22, 23 N.W.2d 782, 789-90 (1946) and were applied in Durfee v. Keiffer, 168 Neb. 272, 280, 95 N.W.2d 618, 624 (1959), and Frank v. Smith, 138 Neb. at 392, 293 N.W. at 334-35. An even earlier eighth circuit case, Whiteside v. Norton, 205 F. 5 (8th Cir. 1913), appeal dismissed, 239 U.S. 144, 36 S.Ct. 97, 60 L.Ed. 186 (1915), was also followed in Durfee v. Keiffer. As the district court stated: "Nebraska law has relied heavily on federal law in formulating its definitions of accretion and avulsion." United States v. Wilson, 433 F.Supp. at 65.

The case of Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892), which has had a seminal influence on the development of the legal definitions of accretion and avulsion in Nebraska case law, established that while the nature of the Missouri River might lead one to assume otherwise, the law of boundary changes due to diminution and accretion could apply to the River, at least "in the mere washing of the waters...

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