U.S. v. City of McAlester, Okl.
Decision Date | 14 August 1979 |
Docket Number | No. 76-1455,76-1455 |
Citation | 604 F.2d 42 |
Parties | UNITED STATES of America, Plaintiff-Appellant, v. CITY OF McALESTER, OKLAHOMA, a/k/a City of South McAlester, Oklahoma, Charley Chiusana, J. T. Hall, a/k/a Joe Turner Hall, Jim Burrows, Earnest Berry, Phillip Orlandees, Joe Whitefield, Don Ketcham, Bill Lyons, and Unknown Lessees, Licensees, and Permittees, Defendants-Appellees. |
Court | U.S. Court of Appeals — Tenth Circuit |
Maryann Walsh, Atty., Dept. of Justice, Washington, D. C. (Peter R. Taft, Asst. Atty. Gen., Washington, D. C., Richard A. Pyle, U. S. Atty., Muskogee, Okl., and Jacques B. Gelin, Atty., Dept. of Justice, Washington, D. C., on the brief), for plaintiff-appellant.
Donald R. Hackler, City Atty., McAlester, Okl., for defendants-appellees.
Before SETH, Chief Judge, and HOLLOWAY, McWILLIAMS, BARRETT, DOYLE, McKAY and LOGAN, Circuit Judges, sitting en banc.
The United States appeals from a judgment of the United States District Court for the Eastern District of Oklahoma, 410 F.Supp. 848, holding valid an easement for a municipal waterworks obtained by the City of McAlester over lands owned by the Choctaw and Chickasaw Nations (the Nations), and denying declaratory and injunctive relief.
At the request of the Secretary of the Interior the United States brought this action in its own right 1 and in its fiduciary capacity 2 on behalf of the Choctaw and Chickasaw Nations against the City of McAlester, a/k/a City of South McAlester (McAlester), and other named and unnamed defendants. The United States sought: (1) a judicial determination that an easement over 2,535.8 acres of tribal lands for the purpose of a watershed, basin, and waterworks system obtained by McAlester on January 31, 1903, was invalid; (2) to quiet title in the Choctaw and Chickasaw Nations to the tribal lands in question; (3) an injunction against McAlester preventing it An earlier opinion of a panel of this court reversed the trial court's judgment and held that the Curtis Act, 30 Stat. 495, a special 1898 statute dealing with the Five Civilized Tribes, did not authorize condemnation of the easement over the unallotted tribal lands in question; that the Government was an indispensable party which had not been joined in the 1903 proceeding; and that therefore the 1903 judgment was void. We decided to reconsider these important questions En banc.
from issuing permits, leases, licenses, and otherwise using the tribal lands without authority; and (4) damages for unauthorized use of the lands. The trial court held that the easement for the waterworks was valid and all relief sought by the Government was denied. The Government appealed.
THE 1903 CONDEMNATION SUIT AND THE TRIAL COURT'S RULING OF
On January 31, 1903, condemnation proceedings which gave rise to the easement in question took place in the Central District of the United States Court in the Indian Territory. The Nations in that case, number 3293, styled City of South McAlester v. The Choctaw and Chickasaw Nations of Tribes of Indians, stipulated that the value of all the lands sought to be condemned by the City 3 was in accordance with the appraisal of the Dawes Commission, and that the Commission's appraisal of $6,515.00 was fair and reasonable compensation for the easement to be taken. They also waived any right of appeal from the judgment to be entered on a jury verdict in accordance with the stipulation.
The jury in that action returned a verdict in favor of McAlester, awarding $6,515.00 in compensation to the Nations. The court entered judgment granting McAlester an easement over 2,535.8 acres for (II R. 117):
the purpose of a watershed and basin and erecting, maintaining and using a water-works system for said plaintiff, the City of South McAlester, to have and to hold and possess said easement so long as the same shall be used for the purposes heretofore set out.
There was testimony at trial that the primary use of the watershed easement acquired from the Choctaw and Chickasaw Nations is to serve as the primary water supply source for the City of McAlester. Two lakes, a filtration plant and the main transmission line from the plant to the City are located on the watershed. (I R. 13-14).
In 1950 the Nations brought a suit against the City to quiet title to the 2,535.8 acres in question in the United States District Court for the Eastern District of Oklahoma. In 1951 the Choctaw Nation moved to join the United States as a party defendant. After an order for such joinder, the Government moved to dismiss on the ground that it had not consented to be sued. That action was dismissed as to the United States on this ground and judgment was entered between the original parties determining that the Nations were the owners of fee simple title to the lands, subject to the easement of the City for the purposes of a watershed and basin so long as they were used for such purposes. 4
As noted, the instant suit was brought in 1975 by the Government on behalf of the Nations to quiet title to the lands in question against claims by the City, to declare The court also found that none of the uses of the lands challenged by the Nations is inconsistent with the primary purpose of the easement to serve as a watershed and basin. The court held that the Nations are owners of fee simple title to the lands in question, subject only to the City's easement for the purpose of a watershed and basin and for erecting, maintaining and using a waterworks system so long as the easement is used for such purpose.
the easement invalid, and for injunctive relief and damages for unauthorized uses of the lands. The trial court ruled that the United States was an indispensable party to the 1903 condemnation action and that the Government had met its burden of proving its absence from that proceeding. 410 F.Supp. at 854. Nevertheless, the court held that the condemnation was authorized by 25 U.S.C. Sec. 357 ( ), and that even if the Government had been a party it could not have prevented the condemnation.
The Government's appeal presents three principal issues: (1) whether the Government was an indispensable party to the 1903 condemnation suit in which it was not joined; (2) whether the Curtis Act authorized the condemnation of the tribal lands involved; and (3) whether the City has made improper uses of the land for non-watershed purposes.
THE QUESTIONS OF INDISPENSABILITY OF THE UNITED STATES TO
THE 1903 CONDEMNATION AND OF CONGRESSIONAL
AUTHORIZATION OF THE PROCEEDING
In the trial court the parties agreed, and the court found, that the United States was an indispensable party to the 1903 condemnation suit and that the Government was not made a party to that proceeding. 5 However on appeal the Government says that our first question is "(w)hether the City could condemn unallotted tribal land without joining the United States as an indispensable party." (Brief for the United States, 2). Proposition I of the Government's argument is that the trial court erred in holding that the City could condemn unallotted tribal land without joining the United States, an indispensable party. (Id. at 6). Since the issue is fundamental to the power of the court to enter a valid condemnation judgment, see United States v. Candelaria, 271 U.S. 432, 443, 46 S.Ct. 561, 70 L.Ed. 1023, we turn first to the indispensability issue. 6
As mentioned, the trial judge was of the view that the easement is valid despite failure to join the Government as a party. The reasoning was essentially that the Government could not have challenged the City's right to acquire the easement, that the Government is not questioning the fairness of compensation paid, and that an actual taking did occur in the proceedings. 410 F.Supp. at 854-55. We are unable to agree with this disposition of the indispensability issue. If, as the Government argues, the Indians lands in question remained subject to a restraint on alienation, and the condemnation was unauthorized, the lands could not "be alienated in any wise without (the Government's) consent . . . " United States v. Candelaria, 271 U.S. 432, 443, 46 S.Ct. 561, 563, 70 L.Ed. 1023, and the Government would be an indispensable party. See also Minnesota v. United States, 305 U.S. 382, 386-87, 59 S.Ct. 292, 83 L.Ed.
235. We cannot be sure what the effect of the Government's participation in the condemnation case might have been. In any event, the fundamental question is whether an indispensable party was not joined whose interest could not be affected without its presence. United States v. Candelaria, supra, 271 U.S. at 443-44, 46 S.Ct. 561.
The indispensability of the Government as a party in suits alienating Indian lands is an important feature of the Government's special relationship to the Indians which "resembles that of a ward to his guardian." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25; Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483. Restraints on alienation have been implied from the guardianship and have also been made express in some cases by treaty and statute. Being convinced, however, that such restraints and conditions for approval of alienation had been removed by Congress as to these particular Indian lands before the 1903 condemnation suit, and that the Congress consented to the condemnation, we must conclude that the United States was not an indispensable party to the condemnation proceeding in question.
The decisions relied on by the Government demonstrate that the presence of restraints on alienation of Indian lands or requirements for approval of their alienation has been the basis of holdings that the Government is an indispensable party. In Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235, the land in question was held by individual Chippewa Indians. The patents were subjected to a 25-year...
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