U.S. v. Clarke

• Decision Date: 15 January 1979
• Docket Number: Nos. 77-2571,77-3469,s. 77-2571
• Parties: UNITED STATES of America, Appellant, v. Glen M. CLARKE et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 765

590 F.2d 765

UNITED STATES of America, Appellant, v. Glen M. CLARKE et al., Appellees.

Nos. 77-2571, 77-3469.

United States Court of Appeals, Ninth Circuit.

Jan. 15, 1979.

Rehearing Denied in No. 77-2571 Feb. 26, 1979.

Carl Strass (argued), of Dept. of Justice, Washington, D. C., for appellant.

Richard A. Weinig (argued), of Anchorage, Alaska, for appellees.

Appeal from the United States District Court for the District of Alaska.

Before WRIGHT, KENNEDY and TANG, Circuit Judges.

KENNEDY, Circuit Judge:

The United States filed this trespass suit as the owner in fee title of property held in trust after its patent to an Indian by allotment. See 25 U.S.C. §§ 331-332. A complete background of the case is set forth in our earlier opinion, United States v. Clarke, 529 F.2d 984 (9th Cir. 1976). The dispute concerns a road that was built on property of the Indian owner by a private party. The private owner's interest in the road later was transferred to a political subdivision of the State of Alaska.

In this phase of the proceedings, the United States sought an injunction against use of the road, claiming that the State of Alaska or a political subdivision may not acquire an interest in Indian lands held in trust except by eminent domain and that an injunction should be granted until eminent domain proceedings are commenced. The trial court denied the injunction, reasoning that the land had been the subject of an inverse taking and that the public has the right to use the road after its acquisition by this means, the property owner being limited to an action for compensation resulting from inverse condemnation. The court granted partial summary judgment and denied injunctive relief, and the latter ruling is the subject of this appeal. ¹

A state is allowed by federal statute to take Indian land by condemnation, 25 U.S.C. § 357. The sole issue on appeal is whether or not the statute extends to takings by inverse condemnation as well as by the affirmative exercise of the eminent domain power. We agree with the district court that the statute permits a state to take the Indian land by paying compensation in an inverse condemnation action.

The statute in question provides: "Lands allotted in severalty to Indians may 'be condemned' for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee." The argument of the Government that the statute does not include inverse takings is based principally on Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939). There the Supreme Court held that the United States is an indispensable party in state actions to condemn any trust property and that such actions must be brought exclusively in the federal courts. We think that case is simply inapposite to the issue before us. There was no occasion there for the Court to consider the propriety of inverse condemnation suits, since the eminent domain action was instituted by the state. The reason for requiring the condemnation suit to be heard in a federal court is irrelevant to whether the United States may, on behalf of the Indian owner, maintain an inverse condemnation action. The Court noted that Indian land under trust allotment is a subject within the exclusive control of the federal government, and that "the judicial determination of controversies concerning such lands has been commonly committed exclusively to federal courts." Id. at 389, 59 S.Ct. at 296 (footnote omitted). Whether the proceeding is for inverse condemnation or for eminent domain, the federal court may maintain control over the action to comply with the policies of Minnesota.

We think once the taking has been accomplished by the state it serves little purpose to interpret the statute to refuse to permit an inverse condemnation suit to be maintained on the grounds that the state should have filed an eminent domain action prior to the taking. As the Alaska Supreme Court noted in...