U.S. v. Wilson
| Decision Date | 10 June 1983 |
| Docket Number | Nos. 81-2350,81-2351 and 81-2384,s. 81-2350 |
| Citation | 707 F.2d 304 |
| Parties | UNITED STATES of America, Appellee, v. Roy Tibbals WILSON, et al., State of Iowa, Appellant. OMAHA INDIAN TRIBE, etc., Appellee, v. Harold JACKSON, et al., State of Iowa and Iowa State Conservation Commission, Appellants. OMAHA INDIAN TRIBE, Appellee, v. AGRICULTURAL & INDUSTRIAL INVESTMENT CO., et al., State of Iowa and Iowa State Conservation Commission, Appellants. UNITED STATES of America, Appellee, v. Roy Tibbals WILSON, et al., Appellants. OMAHA INDIAN TRIBE, etc., Appellee, v. Harold JACKSON, et al., Appellants. OMAHA INDIAN TRIBE, Appellee, v. AGRICULTURAL & INDUSTRIAL INVESTMENT COMPANY, et al. UNITED STATES of America, Appellee, v. Roy Tibbals WILSON, et al., RGP, Inc. and Otis Peterson, Appellants. OMAHA INDIAN TRIBE, etc., Appellee, v. Harold JACKSON, et al., Otis Peterson, Appellants. OMAHA INDIAN TRIBE, Appellee, v. AGRICULTURAL & INDUSTRIAL INVESTMENT CO., et al., RGP, Inc. and Otis Peterson, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
June 10, 1983.
Carol E. Dinkins, Asst. Atty. Gen., James J. Clear, Martin Green, Attys. Dept. of Justice, Washington, D. C., for appellee.
Thomas J. Miller, Atty. Gen. of Iowa, Elizabeth M. Osenbaugh, John P. Sarcone, Asst. Attys. Gen., Des Moines, Iowa, for
appellants State of Iowa and Iowa State Conservation Com'n.
Robert J. Becker, Donald J. Buresh, Edson Smith, Swarr, May, Smith, Andersen & Jensen, Omaha, for Roy Tibbals Wilson, Charles Lakin, Florence Lakin and Harold Jackson.
Peter J. Peters, of Peter J. Peters, P. C., Council Bluffs, Iowa, for RGP, Inc. and Otis Peterson.
Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.
The present controversy grows out of the overall litigation affecting ownership of 2900 acres of land contiguous to the Missouri River formerly occupied by the Omaha Indian Tribe (Tribe) as part of the Omaha Indian Reservation. The land is within an area called the Barrett Survey; it was reserved by the Tribe according to the terms of an 1854 Treaty whereby the Tribe ceded its lands west of the Missouri River to the United States. Treaty of March 16, 1854, art. 1, 10 Stat. 1043. The eastern boundary of the Reservation was the Missouri River. Commencing in 1879 the course of the erratic and uncontrolled river began changing in the Barrett Survey area, giving rise to this boundary dispute. The detailed facts of the dispute are fully set out in our earlier decisions. Omaha Indian Tribe v. Wilson, 575 F.2d 620 (8th Cir. 1978) (), vacated and remanded, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979), and Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th Cir.) (hereinafter referred to as Omaha II ), cert. denied, 449 U.S. 825, 101 S.Ct. 87, 66 L.Ed.2d 28 (1980).
In Omaha II, we ordered title quieted in the Tribe and the United States as trustee for the Tribe to approximately 2200 of the 2900 acres involved in the controversy. The 2200 acres constituted reservation land held in trust by the United States, and claimed by individual landowners. Central to our holding was the applicability of 25 U.S.C. Sec. 194, 1 which operated to shift the burden of proof from the Tribe and the United States to the individual landowners with respect to the trust lands. Left undecided in both Omaha I and Omaha II were the Tribe's claims to nontrust lands in the possession of the individual landowners until 1975 and to lands in the possession of the State of Iowa until 1975.
The State of Iowa acquired the land now in controversy by quitclaim deeds and by its sovereign ownership of islands and abandoned river channels. In Omaha II, following the earlier mandate of the United States Supreme Court, we remanded the claim regarding the State of Iowa's land because section 194 was deemed inapplicable to a sovereign state. 614 F.2d at 1161. The remainder of the land in controversy was patented in fee by the United States prior to 1940 and thus was not part of the trust lands. In Omaha I we noted the United States government had excepted from its complaint any claim to some 400 acres within the Barrett Survey that may have been allotted to individual Indians and subsequently patented to non-Indians. The Tribe's claim to this land was remanded to the district court at that time. 575 F.2d at 651 n.70.
In the district court's latest ruling, 2 title to the entire 2900 acres was quieted in the Omaha Indian Tribe and the United States as trustee for the Tribe. Appeal from this judgment has been taken by the State of Iowa and individual landowners asserting claims to some 700 acres of the land. The basic dispute on this appeal is the meaning of the Supreme Court's opinion as well as this court's earlier remands and directions.
In review of Omaha I the Supreme Court found that this court's application of section 194, which placed the burden of proof on the landowners rather than on the Tribe, was correct. On this basis in Omaha I and Omaha II we found under applicable federal law that the landowners failed to meet their burden of proof that the Missouri River movements at the critical times in issue had produced accretive lands to the Iowa bank of the Missouri River. We held the evidence of the landowners was speculative and conjectural regarding whether the river movement between 1879 and 1923 had changed by avulsive movements or by slow and imperceptible deposits of accretion to the Iowa bank as claimed by the landowners. On the basis of our initial conclusion that the Tribe had established legal title to the trust lands prior to the movements of the river in question, and had therefore established presumptive title under section 194, Omaha I, 575 F.2d at 631, we directed that title be quieted in the Tribe and the United States as trustee for the Tribe when the landowners failed to carry their burden of proof.
On remand of the Tribe's claims to the fee-patent lands and the State of Iowa's lands, the district court held that title to the entire 2900 acres, including the fee-patent lands and those claimed by the state, should be quieted in the Tribe and the United States as trustee. The district court, albeit reluctantly, 3 reasoned the "law of the case" (Omaha II ) required quieting title to the trust land in the Tribe; that subsequent to 1923 the river completely eroded and washed away all the fee-patent lands and State of Iowa lands, and that thereafter, when the river moved west again new land accreted to the trust land quieted in the Tribe in Omaha II; and further that the Tribe had proven the "new" land claimed by the State and the individual landowners had accreted to the Tribe's reservation land. The court reasoned that adverse possession and statutes of limitations were not valid affirmative defenses against the Tribe and the United States as trustee.
Of the various issues raised on this appeal, we need focus only on the question of the burden of proof and the meaning of Omaha II. In the typical quiet title action, where a protective statute such as section 194 is not operative, the burden of proof is on the claimant, which here is the Tribe. The Supreme Court specifically ruled that the State as a sovereign was not affected by section 194 and that as to the original claim made by the Tribe, affecting state lands, the burden of proof remained on the Tribe. 4
The fundamental question relates to the scope of that burden of proof. We have previously stated that the party bearing the burden of proof had the task of showing "whether the thalweg moved by accretion or avulsion in the critical time periods involved," Omaha I, 575 F.2d at 650; see Omaha II, 614 F.2d at 1156, 1161, and that the critical time periods were from 1879 to 1923, and post-1923. Here the Tribe claims land in the western portion of the Barrett Survey area. Plate I taken from the Tribe's brief depicts the areas in controversy. 5
The district court in applying the law of Omaha II found that this court determined that the Tribe was the rightful owner of 2200 acres of the former reservation land. We did so, however, solely by reason that the landowners failed to carry their burden of proof. On this basis, we ruled that as against the individual defendants seeking to retain the trust lands under section 194 presumptive title remained in the Tribe.
It is tempting to follow the district court's line of reasoning and assume that these western lands accreted to the trust land and thus belong to the Tribe. However, we find that reasoning misleading because it allows the Tribe to bootstrap section 194 in asserting its claim against the state.
Our holding in Omaha II established the law of the case only between the litigants involved, to wit, the private landowners and the Tribe. Our holding could have no effect on the ongoing and simultaneous dispute between the State of Iowa and the Tribe because the Supreme Court held that the State was not a white person within the meaning of section 194. The State has from the commencement of the litigation denied the Tribe's assertive ownership to the entire land area within the Barrett Survey. Under the Supreme Court mandate, it is clear that for the Tribe to be successful against the State the entire controversy must be viewed as if section 194 had never been passed. 6 Thus, with regard to State lands the Tribe has the burden of proof to show that the earlier river movements between 1879 and 1923 were avulsive changes, thus establishing no change of title in trust lands.
That we contemplated this burden of proof in Omaha II is indicated by the following passage, which we now realize was less than...
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