United States v. 5,677.94 ACRES OF LAND, ETC., Civ. No. 1825.

• Decision Date: 15 May 1958
• Docket Number: Civ. No. 1825.
• Citation: 162 F. Supp. 108
• Parties: UNITED STATES of America, Plaintiff, v. 5,677.94 ACRES OF LAND, MORE OR LESS, OF THE CROW RESERVATION, STATE OF MONTANA, The Crow Tribe of Indians of Montana, William A. Wall, Chairman, James Real Bird, Vice Chairman, and Phillip Beaumont, Secretary, Crow Tribal Council, et al., and unknown owners, Defendants.
• Court: U.S. District Court — District of Montana

162 F. Supp. 108

UNITED STATES of America, Plaintiff, v. 5,677.94 ACRES OF LAND, MORE OR LESS, OF THE CROW RESERVATION, STATE OF MONTANA, The Crow Tribe of Indians of Montana, William A. Wall, Chairman, James Real Bird, Vice Chairman, and Phillip Beaumont, Secretary, Crow Tribal Council, et al., and unknown owners, Defendants.

Civ. No. 1825.

United States District Court D. Montana, Billings Division.

May 15, 1958.

Krest Cyr, U. S. Atty., Butte, Mont., Dale F. Galles, Asst. U. S. Atty., Billings, Mont., Robert R. MacLeod and Anne S. Bell, Dept. of Justice, Washington, D. C., for plaintiff.

Burton K. Wheeler and Robert G. Seaks, Washington, D. C., Bert W. Kronmiller and Douglas Y. Freeman, Hardin, Mont., for defendants.

Arthur Lazarus, Jr., Washington, D. C., Richard Schifter, Washington, D. C., and Strasser, Spiegelberg, Fried & Frank, New York City, of counsel, amici curiae.

JAMESON, District Judge.

This opinion will consider (1) whether the United States has authority to condemn tribal lands of the Crow Tribe of Indians for the construction of Yellowtail Dam (presented by renewal of defendant's motion to dismiss); (2) whether water-power value should be allowed in determining just compensation; (3) whether the issue of just compensation should be tried before a jury or commissioners (presented by plaintiff's demand for a jury trial); and (4) whether the question of the navigability of the Big Horn River should be determined by the court.

Authority of United States to Condemn Tribal Lands.

Defendants' motion to dismiss was denied by the Honorable Charles N. Pray on January 8, 1957. Judge Pray's opinion is reported in D.C., 152 F.Supp. 861. While his decision is not res judicata, under the rule of comity it should be followed except "for the most cogent reasons". Plattner Implement Co. v. International Harvester Co., 8 Cir., 1904, 133 F. 376. After reviewing the authorities cited in the able briefs filed by counsel for both parties and, in particular, the cases decided subsequent to Judge Pray's opinion, I reach the same conclusion as Judge Pray, i. e., that the United States has the right to condemn the property in question and that the motion to dismiss should be denied. On this question this opinion is supplemental to Judge Pray's opinion of January 8, 1957.

Defendants rely upon the treaties between the United States and the Crow Tribe of Indians and particularly the provisions of the Treaty of May 7, 1868, confirming the aboriginal title of the Indians and providing that certain lands of the Crow Indians were set aside for their absolute and undisturbed use and occupation.¹ It is clear, and defendants do not contend otherwise, that the power of eminent domain may be exercised over Indian tribal lands regardless of treaty provisions. Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295.² The question is whether there is sufficient authorization—general or specific—for the condemnation of the particular tribal lands in question. In other words, are the statutory enactments subsequent to the execution and re-affirmation of the treaties with the Crow Tribe sufficient to manifest an intention of Congress to override the effect of those treaties and permit this condemnation?

While general acts of Congress do not apply to Indians unless so expressed as to clearly manifest an intention to include them (Elk v. Wilkins, 112 U.S. 94, 5 S.Ct. 41, 28 L.Ed. 643), general legislation is sufficient to override the provisions of an Indian treaty where the intention of Congress to do so is clear.³

Sec. 9(c) of the Flood Control Act of December 22, 1944 (58 Stat. 887, 891) directed that the reclamation and power developments of the Missouri River Basin project, which includes Yellowtail Dam, be governed by the Federal Reclamation Laws, i. e., Act of June 17, 1902, and Acts amendatory thereof or supplementary thereto (32 Stat. 388, 43 U.S. C.A. § 371 et seq). The continued prosecution of the Missouri River Basin project was reaffirmed in the Acts of July 24, 1946 (60 Stat. 641, 653) and of May 17, 1950 (64 Stat. 163, 184). The Reclamation Act was construed in Henkel v. United States, 237 U.S. 43, 35 S.Ct. 536, 539, 59 L.Ed. 831, where it was held that reclamation projects under the Reclamation Act "must necessarily include much territory which is included in Indian reservations", and the court could not doubt in view of the broad authority conferred by the Act that it "was the purpose of Congress to give the Secretary of the Interior the right to acquire" such lands, when necessary for reclamation, either by purchase or by condemnation. Basic authority for condemnation is also contained in the general condemnation act of August 1, 1888 (25 Stat. 357, 40 U.S.C.A. § 257). See Judge Pray's opinion and cases there cited (152 F.Supp. at page 863).

Moreover, "the statutory authorization to procure real estate may be evidenced by the making of an appropriation as well as by a specific authorization to acquire". Polson Logging Co. v. United States, 9 Cir., 1947, 160 F.2d 712, 714. See also Judge Pray's opinion and cases therein cited. Subsequent to the authorization legislation, Congress appropriated for preconstruction work on Yellowtail Dam for five consecutive years,—1947 (60 Stat. 348, 368), 1948 (61 Stat. 460, 476); 1949 (62 Stat. 1112, 1129), 1950 (63 Stat. 765, 783); and 1951 (64 Stat. 595, 686). Under a general appropriation bill, (Public Works Appropriation Act, 1956, 69 Stat. 354, 357) Congress appropriated $4,000,000 for initiation of construction work on Hardin unit (Yellowtail Dam).

The authorization and appropriation measures and committee reports relating thereto lead inescapably to the conclusion that Congress knew and intended that tribal lands of the Crow Tribe of Indians would be required in the construction of Yellowtail Dam.

Two cases have been decided by other courts subsequent to Judge Pray's decision. In The Seneca Nation of Indians v. Brucker, D.C.D.C., 162 F.Supp. 580, 581, the Indian tribe contended that "general acts of Congress do not affect Indian Treaty rights" and that "they (general acts of Congress) do not nullify previous special acts whether in the form of legislative enactments or treaties." The Court said: "A review of the authorities indicates that the test is not whether the Congress has acted by general legislation or special acts, but whether, whatever the form of the legislation, Congress has manifested an intention to include Indian treaty rights in the legislation." It was held in that case that an appropriation act of Congress earmarking one million dollars for the construction of the project for which the Indian land was sought to be condemned "manifested a clear Congressional intention to authorize the construction of the project."⁴

In the other recent case,—United States v. 2005.32 Acres of Land, More or Less, Situate in Corson County, South Dakota, and Sioux Indians of Standing Rock Reservation, the District Court of the Northern District of South Dakota, 160 F.Supp. 193, recognized the authority of Congress to exercise the right of eminent domain over Indian tribal lands, but held that Congress had not exercised its authority in that case and granted the defendant's motion to dismiss. The project in that case was prosecuted by the War Department pursuant to Sec. 9(a) of the Flood Control Act of 1944 and prior enactments and not by the Department of the Interior pursuant to the Reclamation Act of 1902 as amended. While the case is also distinguishable in some other respects (and was distinguished from Judge Pray's prior opinion by the court there) it does support defendants' position here.

Defendants contend further that there are three specific statutory prohibitions against the Government's right to condemn: (1) the Crow Allotment Act of 1920 (41 Stat. 751) which provides in Section 8 that "no additional irrigation system shall be established or constructed by the Government for the irrigation of Indian lands on the Crow Reservation until the consent of the tribal council thereunto has been duly obtained;" (2) the 1926 Amendment (44 Stat. 658, 660) which prohibited an irrigation system "unless and until" the Crow Tribe consented; and (3) the 1946 Act on Crow Matters (60 Stat. 333) which provided in Section 9: "No further construction work on the Crow Indian Reservation shall be undertaken by the United States without the prior consent of (1) the Crow Tribe, * * * The consent of the Crow Tribe shall be obtained by a majority vote of the general council of the tribe expressed at a duly convened meeting."

Is Yellowtail Dam an "additional irrigation system" within the meaning of the Crow Allotment Act of 1920? In my opinion this question must be answered in the negative. Yellowtail Dam is a multi-purpose project to impound waters for flood and silt control and power generation, as well as irrigation. It is a part of a comprehensive plan for the development of the Missouri River Basin for the benefit of the public and payment therefor will not be a charge against any tribal funds. It is not an irrigation system or additional irrigation system for the benefit of the Crow Indian land for which payment would be made from tribal funds.

With respect to the 1946 Act, the title and history of the Act are significant. The title is "To provide for adjustments in connection with the Crow Irrigation Project, Crow Indian Reservation, Montana." It is accordingly apparent from the title itself that the Act was intended to apply to the existing irrigation projects. Sec. 9 would prevent new construction on the Crow project without prior consent. Congress had authorized construction of Yellowtail Dam at the previous session in 1944. The 1946 Act makes no reference to Yellowtail Dam, but does refer specifically to the Crow Irrigation Project. Moreover, it appears from the hearings before the House Committee on Indian Affairs in 1946 that the Crow...